PEOPLE v. VALOT

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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Judy Diane VALOT, Defendant and Appellant.

No. G027838.

    Decided: November 27, 2002

Patricia J. Ulibarri, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gary W. Brozio and Kyle Niki Shaffer, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

Judy Valot contends her second degree murder conviction must be reversed because the trial court improperly replaced a juror.   We agree.   The court found the juror was “refusing to deliberate” but the record does not support this conclusion as a “demonstrable reality.”   We reject Valot's ensuing argument that discharge of a juror without good cause precludes retrial on double jeopardy grounds.   In our view, double jeopardy does not apply.

I

After Valot had obsessively accused her boyfriend, Peter Theriault, of cheating on her with another woman at the automobile plant where they both worked, Theriault vanished.   The police never found his body, but believe it was disposed of in the desert near Blythe, where Valot had a mobile home.   Following two weeks of evidence and argument, the jury retired to deliberate.

The jury deliberated for approximately four hours on the first day and about three hours on the afternoon of the second day.   Late in the afternoon of the second day, the court received the following note from the jury foreperson:  “We have determined that a person was killed, that the defendant did it, but can't agree on degree;  first, second or manslaughter.   Maybe a definition of malice can help[,] or further instruction.”   The court discussed the issue with the foreperson and excused the jury for the day, to return the next morning and “in privacy back there ․ reach some consensus, hopefully, as to which instructions you want the court to reread.”

The next morning, the judge received a note from Juror No. 12, stating Juror No. 5 was “hostile and refusing to deliberate.”   Earlier that morning tensions were running high in the jury room.   After receiving the note from Juror No. 12, the court swore the bailiff and heard his testimony, with counsel present, as follows:

“[Bailiff:] The jurors flipped on the juror light, got my attention.   I went into the jury room.   Upon entering the jury room, I see Juror Number 5 standing, seemed-it appeared that tensions were flying and she was yelling at Juror Number 12.[¶]  After I saw it didn't appear to be deliberations, it looked like one person yelling at another one, I said, ‘Hold on, hold on, what's going on,’ and that's when Juror Number 12 stated, ‘We have 11 jurors that want to deliberate, but we have one juror, her, who will not deliberate with us.”  [¶] She then said, ‘No, I have’-‘I want to deliberate, they don't want to deliberate with me.’

“[The Court:] That was Juror Number 5 responding?

“[Bailiff:] Number 5.[¶] At that point, there was a few other things said.   Pretty much, it sounded like they were pointing fingers at each other.   Tensions were high.  [¶] I told them all to sit down, shut up, and I will be back in two minutes after talking to the judge and see what we are going to do.  [¶] That's what I did.

“[The Court:] And subsequent to that, [the bailiff] contacted the court and the court indicated to [the bailiff] that he should ask the jury if they wanted to take a break in light of the feelings that were being exhibited in the jury room, and my understanding is that they did opt to take a break and they are presently in the hall not deliberating.”

The court went on to interview each juror individually, with counsel present.   Following each interview, the prosecutor and defense counsel were also permitted to ask questions of each juror.   The note from Juror No. 12 prompting the court's inquiry stated:  (1) on the first day of deliberations, and after only “one hour” of deliberating, Juror No. 5 said, “Let's just call it hung and leave”;  (2) on the second day of deliberations, Juror No. 5 said, “I will not consider certain witnesses' testimony or certain pieces of evidence because I don't think they are worth anything”;  and (3) later on the second day, Juror No. 5 said, “I am not going to change my mind no matter what, so let's hang it and leave.”   The note further included Juror No. 12's comments that:  (4) “This juror [Juror No. 5] has also yelled at other members of the jury and has called us bullies on three occasions”;  and (5) “The jury is at an impasse because of this, and I believe this particular juror's attitude is jeopardizing the deliberation process.”

The judge discussed each of these statements with all of the jurors.   All except Juror No. 5 agreed these remarks were true and supported the note's conclusion that Juror No. 5 was “jeopardizing the deliberation process.”

Juror No. 5 candidly acknowledged that she made the statements attributed to her in Juror No. 12's note, but claimed they were taken out of context.   Regarding her first statement, “Let's just call it hung and leave,” she paraphrased another juror's comments in the first “go around” of deliberations:  “ ‘I made up my mind the second day ․ of trial and, you know, thought she was guilty and that was all there was to it.’ ”   The jury continued deliberating after this announcement of diametrically opposed positions held by Juror No. 5 and the other juror.

It soon became clear Juror No. 5 had serious reservations about the government's case.   Initially, she was troubled by two issues:  (1) the lack of a body (“You know, he might very well be alive and he could just walk into this room any minute now”);  and (2) the possibility that, if the victim had in fact been killed, his ex-wife or Valot's daughter, Tory, were likely suspects.   Juror No. 5 appeared to retreat from these positions as deliberations continued.   She told the judge, “I was going to say, and I did change my mind and ․ concede in my thinking that because of my-of Ms. Valot's behavior after the fact, that she was-hiding something and, therefore, there was-there was some area of guilt which would mean she-she did something.”

Juror No. 12 acknowledged, “On the first day I believe we had two fairly big hurdles and issues to get over, and we did that fairly well even after she said, ‘Let's hang it.’   She calmed down after the foreman calmed her down, after that first hour, and she was very reasonable the rest of that day.”   Recapping the first day of deliberations, Juror No. 8 noted, “She ․ started coming around and she finally agreed that the defendant was probably-that the victim was probably dead and the defendant probably did it.   And so then, we were trapped with, you know, what do we do, what position do we make on the-for level, you know, murder, murder two or manslaughter.  [¶] Then, it was ‘I am not going anything greater than manslaughter,’ and then we are hung up with that.   We are still hung up with that.”

Juror No. 12 summarized Thursday afternoon's deliberations (there were no deliberations Thursday morning) this way:  “[W]e came in and we began deliberating.   And we had gone around the table and discussed our views, looking at the evidence, and then she said, ‘Well, no, I have changed my mind.’   And the foreman said, ‘But, we decided yesterday on these other two things, you can't change your mind at this point,’ and she went into quite a rampage yesterday.”   Responding to the judge's inquiry, Juror No. 12 clarified that “rampage” meant “Yelling.”

Juror No. 12 continued, “Then, she said, ‘I am not going to consider this piece of testimony or this piece of testimony because I don't think it is worth anything.’   And so, that was the other point there, and I did think that that was a concern.”   Defending her position, Juror No. 5 explained, “That has to do with statements by people whose-where the witness stated that she-‘If he does this, I am going to kill him,’ and those kind of things.   And what I told them, I felt, was that people make statements like that all the time.   You know, ‘I am going to kill you.’  ‘If he does this, I am going to kill you.’  [¶] And I told them I couldn't take those in and of themselves serious, that seriously in-you know, as seriously as they were taking them.”   To Juror No. 12, it appeared that in the three short hours of deliberations on the Thursday, Juror No. 5 had reverted to a belief that “it is highly probable that Donna Theriault or [Tory] Valot committed the crime․”

On Friday morning, the third day of deliberations, it appears the jury did not immediately consider which malice instructions it wanted the court to reread.   Instead, the foreman attempted to review a chart summarizing the evidence the jury had discussed the day before.   Juror No. 5 apparently interrupted the foreman.   Juror No. 5 recounted the events leading to the bailiff's appearance:  “I sat down and-this morning said, ‘Using all these facts, not changing a single one of these facts, we could actually say that [defendant]'s daughter Tory could have been the person who pulled the trigger,’ and they said, ‘No, that's not true, that's conjecture.’ [¶] And I said-But, I didn't think that was going that far into conjecture.   They said, ‘Well, no one is charging her.’  [¶] I said, ‘I am not trying to, I am just saying that there is another possible use of this evidence.   That is reasonable, because we don't know what happened when.   And, as a mother, she could go through and hide all the facts and, you know, hide everything out in Blythe and go through everything that happened after the fact just as easily.  [¶] And I don't think that was conjecture, and they kept telling me, ‘You can't discuss that because no one said that Tory did it,’ and I said, ‘But, the facts can point to that just as easily as they can point to Judy pulling the trigger.   Tory said her mother-Tory said that she wished she could kill him also and, you know, she had access and everything else.  [¶] And they said, ‘No, you can't look-that's conjecture, and you can't even think that way,’ and I was, like, ‘Okay, well, if I can't, you know, point out my arguments to the evidence’-maybe that was wrong.   Maybe that is conjecture and I am going way off the path.   I thought I could do that, but they all said no way and they shut me down.  [¶] And I said, ‘You know what, then let's just-you know, let's call him in and let's, you know, do what we do now.   Let's go from here.’ ''   As Juror No. 11 summarized, “And she finally, I guess, just got frustrated, she threw her hands up, she said, ‘I am done, I am done,’ and she took the switch and that was it.”  [The Court:] “That was today when she buzzed the bailiff?”  [Juror No. 11:] “Yes, this morning.”

After hearing the statements of all the jurors, some of which we will highlight more fully below, the trial judge ruled:  “This lady obviously committed juror misconduct because, within one hour of the jury deliberating, her mind was made up and she refused to openly discuss any further facts with the jurors.   She announced a decision to stand for a certain verdict and determination to stand for a certain verdict.  [¶] And, she already indicated within an hour of deliberating that they might as well go home because the jury was hung.   And this is in the face of the other 11 jurors indicating to the court and counsel that they wished to continue to deliberate and they have not felt that deliberations are drawing to a close, they have a lot of issues, law and facts, to yet discuss.  [¶] And this one individual juror is a hindrance because she refuses to listen and discuss freely, free exchange of ideas and views as relates to the evidence.  [¶] This appears also to have gone on yesterday.   This morning there is evidence that the same juror refused to follow procedures that were set up by the foreman, as far as reviewing facts and as that-as those facts related to the law.  [¶] Several jurors said that she won't discuss other people's point of view.”

The trial court continued:  “This lady has indicated that she has some anger over the proceedings at this point in time, regarding interviewing the jurors regarding her conduct and, although she does say she would attempt to further deliberate, it would be difficult.  [¶] ․ Certainly, there has been emotional distress exhibited by this lady and some of the other jurors, and it is quite apparent to this court that this lady has refused to deliberate.  [¶] And without going into further explanation, I think the record speaks for itself as to her conduct.   It amounts to a failure to perform her duty and, therefore, does constitute good cause for her removal from this jury.   So, she is discharged.”

An hour after Juror No. 5 was discharged and replaced with an alternate juror, the jury reached a verdict, convicting Valot of second degree murder.   Valot now appeals.

II

 The trial court may remove a juror who refuses to deliberate “on the theory that such a juror is ‘unable to perform his duty’ within the meaning of Penal Code section 1089.”  (People v. Cleveland (2001) 25 Cal.4th 466, 475, 106 Cal.Rptr.2d 313, 21 P.3d 1225 (Cleveland );  see Pen.Code, § 1089 [death, illness, or inability of juror to perform duty constitute “good cause shown” for removal of juror].)  We review a trial court's removal of a juror and replacement with an alternate for abuse of discretion.  (Cleveland, supra, 25 Cal.4th at p. 474, 106 Cal.Rptr.2d 313, 21 P.3d 1225.)   That discretion is “at most a limited discretion to determine that the facts show an inability to perform the functions of a juror, and that inability must appear in the record as a demonstrable reality.”  (People v. Compton (1971) 6 Cal.3d 55, 60, 98 Cal.Rptr. 217, 490 P.2d 537 [reversal where trial court expressly found juror's remarks did not show he “ ‘would be unable to serve’ ” but nevertheless dismissed him “ ‘out of an abundance of caution ․’ ”].)

The limited nature of the trial court's discretion is illustrated by the Supreme Court's recent exposition in Cleveland of examples of conduct that do not constitute a refusal to deliberate.  “The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge.   Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge.   A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views.”  (Cleveland, supra, 25 Cal.4th at p. 485, 106 Cal.Rptr.2d 313, 21 P.3d 1225.)   The trial court did not have the benefit of Cleveland at the time it conducted its inquiry.1

In Cleveland, the Supreme Court defined a “refusal to deliberate” as consisting of “a juror's unwillingness to engage in the deliberative process;  that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views.”   (Cleveland, supra, 25 Cal.4th at p. 485, 106 Cal.Rptr.2d 313, 21 P.3d 1225.)   A nonexhaustive list of examples of conduct constituting a refusal to deliberate includes:  “expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury.”  (Ibid.)

 In light of Cleveland, the record does not show to a demonstrable reality that Juror No. 5 “refused to deliberate,” as the trial court concluded.   The court relied, in part, on the juror's “refus[al] to follow procedures that were set up by the foreman” on the third morning, but under Cleveland a juror's disagreement about “the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge.”  (Cleveland, supra, 25 Cal.4th at p. 485, 106 Cal.Rptr.2d 313, 21 P.3d 1225.) The court appears to have worried that ignoring the procedures hindered Juror No. 5 and the rest of the jury “as far as reviewing facts” and how “those facts related to the law.”   Yet Juror No. 5's very departure on this point was an expression of her difference over how the facts fit the law.

 That a juror “disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts ․ is not a ground for discharge.”  (Cleveland, supra, 25 Cal.4th at p. 485, 106 Cal.Rptr.2d 313, 21 P.3d 1225.)   The other jurors objected that Juror No. 5 was “hypothesizing a lot” and “wants to come up with her own suspects.” But Juror No. 5 was not alone initially in supposing someone besides Valot “could have been the person who pulled the trigger․” “Two people feel the evidence points to one thing, but they haven't really defined what evidence points to it,” said one juror.   In Juror No. 4's view, “I would say two of them have stepped beyond reasonable doubt, to me, and are using unreasonable doubt and conjecture to come up with something that none of the evidence points to as being a possibility.”   Another juror concluded, “[T]o me, she is not making sense,” and the court asked, “Not making sense as far as her evaluation of the evidence?”  “Right,” was the answer.   Under Cleveland, however, neither Juror No. 5's view of the facts or the law, nor the possibility that she might have “relie[d] upon faulty logic or analysis,” were proper considerations for any of the jurors or for the court.  (Cleveland, supra, 25 Cal.4th at p. 485, 106 Cal.Rptr.2d 313, 21 P.3d 1225.)

 Deliberation “ ‘in the context of the jury function’ ” means “ ‘analyzing, discussing and weighing the evidence ․ with a view to reaching a verdict.’ ”  (Bormann v. Chevron USA, Inc. (1997) 56 Cal.App.4th 260, 263, fn. 2, 65 Cal.Rptr.2d 321.) Here, Juror No. 5 changed her vote from an acquittal to manslaughter after listening to the views of the other jurors.   This is the conduct of a deliberating juror.   The fact she retreated from this view the next day, explaining at length her reasons for doing so, bolsters our conclusion.   Indeed, some of the jurors acknowledged Juror No. 5 was deliberating.   According to one juror, Juror No. 5 was “talking and swapping views on the trial,” and another panelist, when asked whether Juror No. 5 was “engaged in” the “exchange of comments about the evidence, comments about the law” said, “absolutely.”

Most jurors, however, believed Juror No. 5 only “wants to express her interpretation, but not hear.   She doesn't want-she doesn't want an exchange.”   Still, even if it frustrated the other jurors, exchange is evident where, as one juror described it, “on the board in there we have written all the points” but “she comes back with her own ideas.”  (Italics added.)   Juror No. 5 would “cut” others “off” and say, “No, no, no, that's not right,” but her ill manner and sharp exchanges in confronting and rejecting the majority's view indicate her engagement in the process. The trial court was properly concerned that Juror No. 5 “express[ed] a fixed conclusion at the beginning of deliberations ․” (Cleveland, supra, 25 Cal.4th at p. 485, 106 Cal.Rptr.2d 313, 21 P.3d 1225), but as our discussion shows, she manifestly did not “refus [e] to consider other points of view, refus[e] to speak to other jurors, [or] attempt[ ] to separate [her]self physically from the remainder of the jury.”   (Ibid.)

 Juror No. 5 deliberated for a reasonable amount of time and should not have been discharged.   Other jurors blamed Juror No. 5 for the jury's impasse because “she's definite,” “she has had her mind made up,” and “her mind is made up.”   One juror indicated, “I would be willing to work with her, but I don't think her mind is going to be changed.”   Another, however, acknowledged Juror No. 5's statement her “mind was made up” might have been “just an isolated statement.”   In any event, it was apparent the other jurors were coming to definite conclusions themselves.   In Juror No. 5's view, “they think that somehow they can make us change our minds by hammering away at the same issues.”   The other jurors had enough time to settle into a position as solidly as Juror No. 5 was entrenched in hers.   This suggests a reasonable amount of time had passed in deliberations.   And as the Supreme Court said in Cleveland, “A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views.”  (Cleveland, supra, 25 Cal.4th at p. 485, 106 Cal.Rptr.2d 313, 21 P.3d 1225.)

 In view of all of the foregoing, Juror No. 5 should not have been dismissed.   The error is prejudicial and requires reversal of the judgment.   (Cleveland, supra, 25 Cal.4th at p. 486, 106 Cal.Rptr.2d 313, 21 P.3d 1225.)

III

 Our determination it was prejudicial error to substitute an alternate for Juror No. 5 raises the issue of whether double jeopardy principles preclude any retrial.   Does a trial court's abuse of discretion in erroneously substituting a juror violate “the interest of an accused in retaining a chosen jury” (Crist v. Bretz (1978) 437 U.S. 28, 35, 98 S.Ct. 2156, 57 L.Ed.2d 24), as Valot contends?   If so, does the error have double jeopardy implications?   The issue has divided our sister Courts of Appeal and is currently pending before our Supreme Court.2  We asked the parties for letter briefs and, after wrestling with the issue, join those courts holding double jeopardy does not bar retrial in the circumstances presented here.

 Valot analogizes the present case to a mistrial erroneously ordered without the defendant's consent.   When a court abuses its discretion by declaring a mistrial over the defendant's objection and without legal or “manifest” necessity, retrial is barred on double jeopardy grounds.  (United States v. Dinitz (1976) 424 U.S. 600, 606-607, 96 S.Ct. 1075, 47 L.Ed.2d 267;  People v. Upshaw (1974) 13 Cal.3d 29, 33, 117 Cal.Rptr. 668, 528 P.2d 756.)   The rationale for precluding retrial in such cases is that the mistrial negates the defendant's “ ‘valued right to have his trial completed by a particular tribunal.’ ”  (United States v. Dinitz, supra, 424 U.S. at p. 606, 96 S.Ct. 1075, quoting Wade v. Hunter (1949) 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974.)   As our Supreme Court has recognized, “a defendant may have valid personal reasons to prefer going ahead with the trial rather than beginning the entire process anew, such as a desire to minimize the embarrassment, expense, and anxiety mentioned above.   These considerations are peculiarly within the knowledge of the defendant, not the judge, and the latter must avoid depriving the defendant of his constitutionally protected freedom of choice․” (Curry v. Superior Court (1970) 2 Cal.3d 707, 717, 87 Cal.Rptr. 361, 470 P.2d 345.)   For these reasons, absent defendant's consent, he may not be “deprived of his option to go to the first jury and, perhaps, end the dispute then and there with an acquittal.”  (United States v. Jorn (1971) 400 U.S. 470, 484, 91 S.Ct. 547, 27 L.Ed.2d 543.)

Valot's mistrial analogy is inapt because the erroneous substitution of an alternate juror does not deprive a defendant of the right to a verdict from her first jury.   Nor does it subject the defendant to the embarrassment, expense or anxiety of awaiting another jury at some future time, rather than proceeding with the present jury immediately.   Inclusion of an alternate does not mean Valot was denied the right to have her trial “completed by a particular tribunal.”   The alternate was a member of that tribunal, of equal dignity as the other jurors.   Juror substitution, in the circumstances of this case, does not impact the appellant's interest in “retaining a chosen jury.”  (Crist v. Bretz, supra, 437 U.S. at p. 35, 98 S.Ct. 2156.)   Valot participated fully in choosing the alternate juror, just as she did in selecting the initial 12 jurors seated.  Penal Code section 1089 provides that alternate jurors “must be drawn from the same source, and in the same manner, and have the same qualifications as the jurors already sworn, and be subject to the same examination and challenges.”   Valot does not suggest there was any deviation from these requirements.

 Ample precedent confirms alternate jurors are of equal dignity as regular jurors.  “At all times, the alternate is a potential member of the regular jury.”  (People v. Hess (1951) 104 Cal.App.2d 642, 680, 234 P.2d 65.)  “Alternates are provided equal opportunity to see and hear all of the proceedings.   They take the same oath as the other jurors and must attend trial with them.   They are bound by the orders and admonitions of the court, and if confinement is ordered they are confined with the other jurors prior to final submission of the case.”  (People v. Collins (1976) 17 Cal.3d 687, 694, 131 Cal.Rptr. 782, 552 P.2d 742;  see also People v. Burns (1948) 84 Cal.App.2d 18, 29, 189 P.2d 868 [noting that alternate “was subject to the same challenge and took the same oath as the other jurors”].)  “We may assume ․ that the appellants were satisfied that the alternate juror selected would give them the fair and impartial trial to which they were entitled, should he be called in lieu of any of the regular jurors.”  (People v. Hess, supra, 104 Cal.App.2d at p. 680, 234 P.2d 65;  see also People v. Burns, supra, 84 Cal.App.2d at p. 33, 189 P.2d 868 [noting that alternate juror “was a juror of the defendants' own selection”].)  In our view, a defendant's ability to choose alternates and to proceed to a verdict distinguishes the erroneous substitution of a juror from an improperly declared mistrial.   Only in the latter situation is one deprived of the right to have the trial “completed by a particular tribunal.”  (Wade v. Hunter, supra, 336 U.S. at p. 689, 69 S.Ct. 834.)

 Furthermore, because “[t]he same proceedings were had in the selection of the alternate juror as in the case of the first twelve who took their places in the box” (People v. Hess, supra, 104 Cal.App.2d at p. 680, 234 P.2d 65), we strongly disagree with Valot's suggestion that seating the alternate juror infringed the “the right to a fair and impartial jury rather than one selected by the prosecution.”  (See People v. Young (1929) 100 Cal.App. 18, 23, 279 P. 824.)   This argument inappropriately impugns the qualifications and performance of alternate jurors.   Alternate jurors are not “selected by the prosecution” alone.   Nor does the erroneous seating of an alternate juror place any “undue advantage ․ in the hands of the prosecution,” as Valot suggests.   The alternate juror, even if erroneously substituted, sits through all the same testimony and may well take a similar view of the evidence as defendant.   Here, “no claim is made that the alternate juror seated was not in fact a fair and impartial person to act as a juror.”  (People v. Hess, supra, 104 Cal.App.2d at p. 680, 234 P.2d 65.)   In sum, the erroneous substitution by the court does not by itself raise any negative inference regarding the ability of an alternate juror to carry out his or her duties.

 Given this conclusion, we are not inclined to favor Valot's jeopardy argument.   Nothing about the improper substitution of an alternate implicates a defendant's right under the California Constitution to the deliberations and verdict of a full panel of 12 jurors.  (See People v. Collins, supra, 17 Cal.3d at p. 693, 131 Cal.Rptr. 782, 552 P.2d 742 [“a defendant may not be convicted except by 12 jurors who have heard all the evidence and argument and who together have deliberated to unanimity”].)  Upon replacement, the jury is instructed that “The People and [the] defendant[s] have the right to a verdict reached only after full participation of the twelve jurors who return the verdict.  [¶] This right may be assured only if you begin your deliberations again from the beginning.”  (CALJIC No. 17.51;  People v. Collins, supra, 17 Cal.3d at p. 694, 131 Cal.Rptr. 782, 552 P.2d 742.)   Though it may be somewhat “unrealistic” to believe juries will “start at the very beginning [, n]evertheless, the purpose and effect of the instruction is not diminished, because it tells the jury to thoroughly brief the alternate juror as to what has been discussed and decided, and the reasons for any decisions.   With this information, the alternate juror may intelligently attack currently held positions and may make a fully informed decision when he votes.   The alternate juror is thus placed in substantially the same position as the other jurors.”  (Note, Substitution of Alternate Jurors During Deliberations:  Constitutional and Procedural Considerations (1981) 57 Notre Dame Lawyer 137, 143.)   Valot does not suggest the alternate or any of the other jurors in this case abdicated their responsibility to deliberate.   Any objection along these lines was waived by the failure to raise it below.  (People v. Collins, supra, 17 Cal.3d at p. 695, fn. 4, 131 Cal.Rptr. 782, 552 P.2d 742.)

 Unlike the mistrial scenario, when a court erroneously replaces a juror with an alternate, the defendant still enjoys the “essential feature” of a jury trial.   The “essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group's determination of guilt or innocence.”  (Williams v. Florida (1970) 399 U.S. 78, 100, 90 S.Ct. 1893, 26 L.Ed.2d 446.)   True, the court made this observation in the context of a decision that there is no federal constitutional right to a jury of 12 persons (id. at pp. 98-99, 90 S.Ct. 1893), whereas the California Constitution contains such a guarantee.  (People v. Collins, supra, 17 Cal.3d at p. 693, 131 Cal.Rptr. 782, 552 P.2d 742.)   Nonetheless, the reasoning in Williams v. Florida remains applicable here:  a jury was interposed between appellant and her government accuser such that, unlike an erroneously declared mistrial, appellant here enjoyed the “essential feature” of a completed jury trial.

Valot suggests “[a]t least two California courts have faced similar instances where a juror has been removed without cause,” noting these courts “reached differing results on the double jeopardy issue.”  (See People v. Young, supra, 100 Cal.App. 18, 279 P. 824;  People v. Burgess (1988) 206 Cal.App.3d 762, 253 Cal.Rptr. 828.)   Courts considering the jeopardy issue have also turned to People v. Burns, supra, 84 Cal.App.2d 18, 189 P.2d 868.   Valot claims People v. Young supports her position and compels a decision in her favor.   All of these cases, however, consider whether a defendant has faced two juries in a single trial when an alternate is sworn at various stages in that trial.   In other words, do the 11 original jurors and the alternate juror constitute a second jury (following the “first” jury of the original 12)?   If so, can the defendant successfully assert a plea of once in jeopardy?

That precise issue is not before us.   We consider the jeopardy implications of a second trial, not a “second” jury in the first trial.   Additionally, the guidelines we might glean from these cases are, in our view, already well-established.   For example, it has long been held that the unity of jury continues when an alternate is seated.  (People v. Hess, supra, 104 Cal.App.2d at p. 680, 234 P.2d 65 [seating of alternate “does not destroy the unity of the jury because the jury is not complete until the alternate is accepted and sworn”].)  And the discharge of one juror does not amount to dismissal of the entire jury.  (People v. Hohensee (1967) 251 Cal.App.2d 193, 204, 59 Cal.Rptr. 234.)

 The double jeopardy prohibition against retrial is not absolute.   Where a defendant seeks reversal of a conviction because of error at trial, and succeeds in obtaining relief, he or she is generally deemed to have waived jeopardy objections to a new proceeding free of the error.  (Trono v. United States (1905) 199 U.S. 521, 533-534, 26 S.Ct. 121, 50 L.Ed. 292;  People v. Ham Tong (1909) 155 Cal. 579, 583, 102 P. 263.)   It is “well settled that a trial resulting in conviction, followed by reversal on appeal for errors committed at the trial, does not bar a retrial.”  (People v. Lo Cigno (1965) 237 Cal.App.2d 470, 472, 46 Cal.Rptr. 918.)   The successful appellant “ ‘does not gain immunity, for by successfully attacking the judgment he at least subjects himself to a retrial that may reach the same result.’ ”   (Ibid.;  People v. Hohensee, supra, 251 Cal.App.2d at p. 204, 59 Cal.Rptr. 234 [“Any error in the manner in which the trial court dismissed the juror was cured by our reversal ․”].)  Reversal is the usual remedy for error, whether it is mere trial error or constitutional error.  (See, e.g., People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 71-72, 2 Cal.Rptr.2d 389, 820 P.2d 613.)   An exception to this general rule exists when the appellate court reverses for insufficiency of the evidence, in which case retrial is barred.  (Burks v. United States (1978) 437 U.S. 1, 18, 98 S.Ct. 2141, 57 L.Ed.2d 1;  People v. Pierce (1979) 24 Cal.3d 199, 209-210, 155 Cal.Rptr. 657, 595 P.2d 91.)   That exception has no application here.3

Courts considering jeopardy principles sometimes weigh the interests of the defendant and society against each other.   We need not do so here.   In deciding that double jeopardy does not bar retrial after a mistrial for manifest necessity, even over the defendant's objection, the United States Supreme Court concluded:  “What has been said is enough to show that a defendant's valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments.”  (Wade v. Hunter, supra, 336 U.S. at p. 689, 69 S.Ct. 834, italics added.)   Unlike the grant of a mistrial for manifest necessity, where the defendant's right to have trial completed by the first jury is forever lost and yet still subordinated to the public interest, reversal in the case of erroneous substitution of a juror satisfies both interests.   As we have discussed, the interest at stake for a defendant is not in having her trial completed by a particular tribunal, which is assured by the alternate juror she chose, but rather that no juror be discharged without good cause.   Society shares the same interest in seeing Penal Code section 1089 faithfully applied.   Trials untainted by reversible error serve the public interest, and the public has a corresponding interest in freeing the innocent or “punishing one whose guilt is clear after he has obtained such a trial.”   (United States v. Tateo, (1964) 377 U.S. 463, 466, 84 S.Ct. 1587, 12 L.Ed.2d 448 (Tateo ).) Since both interests are served by reversal, in our judgment a defendant should not reap a windfall exemption from prosecution when a juror is erroneously dismissed and replaced by an alternate.

Stripped of its insupportable reliance on the mistrial analogy, Valot's argument reduces to the assertion that a trial court's abuse of discretion by itself raises the double jeopardy bar.   This proposition has never been the law.  (See Tateo, supra, 377 U.S. at p. 466, 84 S.Ct. 1587 [“It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction”].)  The court in Tateo also observed, “From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they are now in protecting against the effects at improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution.   In reality, therefore, the practice of retrial serves defendants' rights as well as society's interest.”  (Ibid.) In addition to the possibility that review might not be as searching if the rule were as defendant suggests, we also observe that if jeopardy routinely attached to a trial court's miscues, even on the abuse of discretion standard, it would likely so chill that discretion as to adversely affect the administration of justice.

In Tateo, the trial court abused its discretion by coercing a plea from the defendant after the jury had been impaneled.   Because the jury had been sworn, jeopardy attached.   The Supreme Court, however, concluded that, as “a well-established part of our constitutional jurisprudence,” the Double Jeopardy Clause did “not preclude the Government's retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction․” (Tateo, supra, 377 U.S. at p. 465, 84 S.Ct. 1587.)   Similarly, we conclude there is no violation here, where a jury selected by appellant was interposed between her and the government.4  We conclude that the general waiver rule regarding jeopardy and appeal applies.

The judgment is reversed.

FOOTNOTES

1.   The Supreme Court cautioned, “We also observe that permitting the attorneys for the parties to question deliberating jurors is fraught with peril and generally should not be permitted.”  (Cleveland, supra, 25 Cal.4th at p. 485, 106 Cal.Rptr.2d 313, 21 P.3d 1225.)   Valot raised this issue as grounds for reversal in a supplemental brief submitted after Cleveland was filed.   Because we reverse for the erroneous discharge of Juror No. 5, we need not decide whether questioning by the attorneys constitutes an independent ground for reversal.

2.   Compare People v. Hernandez (2002) 95 Cal.App.4th 1346, 116 Cal.Rptr.2d 379, review granted May 15, 2002, S105271 (finding double jeopardy violation);  People v. Smith, review granted June 19, 2002, S106273 (finding jeopardy violation, over dissent);  and People v. Du, review granted June 19, 2002, S106740 (finding jeopardy violation, over dissent), with People v. Alas (2002) 100 Cal.App.4th 293, 122 Cal.Rptr.2d 467, review granted October 2, 2002, S109356 (no jeopardy violation);  and People v. Trotter (2002) 101 Cal.App.4th 1256, 124 Cal.Rptr.2d 765, review granted November 20, 2002, S110380 (no jeopardy violation).We are not aware of any out-of-state or federal cases that deal on the merits with the issue.   In People v. Payton (1971) 2 Ill.App.3d 693, 276 N.E.2d 775, 778, the court commented in passing that “the trial judge ․ could not, over defendant's objection, arbitrarily substitute the alternate juror,” adding that “[t]o have done so might very well have furnished a sufficient basis for a subsequent claim of double jeopardy.  (See 21 Am.J [u]r.2d, Criminal Law, Secs. 198 and 199.)”   This statement that an action “might very well have” jeopardy implications is, on its face, only dicta.   And the citation to American Jurisprudence Second is apparently a mistake, as the referenced sections do not mention double jeopardy.

3.   Valot contends irrelevant and prejudicial evidence was erroneously admitted.   According to Valot, there is insufficient evidence to support the conviction had the following evidence been excluded:  (1) DNA evidence identifying the victim's blood found in the entryway of the victim's home, the garage, and his truck;  (2) the discovery of the victim's guns in Valot's trailer;  (3) testimony of Valot's neighbors they heard gunshots around the time of the victim's disappearance;  and (4) a photograph of Valot holding a handgun in a firing position.The court did not abuse its discretion in admitting this evidence.   Valot never objected to the relevancy of the DNA evidence at trial, therefore, the claim is waived.   In any event, evidence of the victim's blood found in the home he shared with the defendant was relevant to show his disappearance was caused by criminal conduct.   Valot also waived any objection to the discovery of the victim's guns in Valot's trailer, including a loaded handgun.   Because the victim kept his weapons in his Irvine home and always removed the ammunition before storing them, the evidence tended to connect Valot to the victim's disappearance and was properly admitted.   Evidence of gunshots near the time of the victim's disappearance was obviously relevant and the photograph depicting Valot's muscular forearms tended to rebut Valot's claim she was too small to lift the victim's body into her truck.   Nor was the evidence unduly prejudicial under Evidence Code section 352.

4.   As in Tateo, we note that “[i]f there were any intimation in a case that prosecutorial or judicial impropriety justifying a mistrial resulted from a fear that the jury was likely to acquit the accused, different considerations would, of course, obtain.”  (Tateo, supra, 377 U.S. at p. 468, 84 S.Ct. 1587, fn. 3.) Appellant has not raised the issue or made any showing of judicial impropriety, with good reason.   Here, the removal of the juror for lack of deliberation was initiated by the jury, not the trial court.   Moreover, the trial court conducted the ensuing hearing with fairness and impartiality, navigating through the difficult terrain of juror removal before the guidance of Cleveland became available.

ARONSON, J.

WE CONCUR:  BEDSWORTH, Acting P.J., and MOORE, J.

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