LARIOS v. PEOPLE

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Court of Appeal, Second District, Division 4, California.

Armando Ysidoro LARIOS, Petitioner, v. The SUPERIOR COURT OF VENTURA COUNTY, Respondent. The PEOPLE, Real Party in Interest.*

Civ. 52344.

Decided: April 10, 1978

Richard E. Erwin, Public Defender, Kenneth Cleaver, Asst. Public Defender, Ronald E. Balle and Kelton Lee Gibson, Deputy Public Defenders, for petitioner. C. Stanley Trom, Dist. Atty., and Jay M. Johnson, Jr., Deputy Dist. Atty., for real party in interest. No appearance for respondent Court.

Petitioner seeks a writ of prohibition to prevent a second trial on an amended information charging him with robbery, in violation of section 211 of the Penal Code, on the ground that he had once been in jeopardy on that charge because of the proceedings at his first trial hereinafter described. We deny the petition.

At the original trial of the case against petitioner, the evidence had been received, the jury had been instructed and had retired to deliberate. Before the second day of deliberation, a juror advised the trial court that he had read certain newspapers which contained matters not developed in evidence, and inquired whether he might properly bring the information thus secured to the attention of his fellow jurors. The trial court held a hearing, out of the presence of the other 11 jurors, at which that juror was sworn and testified. It is conceded that that hearing disclosed that the newspaper stories cast doubt on the credibility of certain defense witnesses and that use of that information would be detrimental to petitioner. Since there were no alternate jurors, defense counsel was asked whether he would stipulate to a trial by 11 jurors; counsel refused so to stipulate. Thereupon, without seeking or getting the consent of petitioner or his counsel, the trial court declared a mistrial.

There is no question but that the first trial had proceeded to a point where defendant had been placed in jeopardy and that a second trial cannot validly be held unless the mistrial was either with the consent of defendant or was declared for legal necessity. The decisions of the Supreme Court in Curry v. Superior Court (1970) 2 Cal.3d 707, 87 Cal.Rptr. 361, 470 P.2d 345 and in People v. Compton (1971) 6 Cal.3d 55, 98 Cal.Rptr. 217, 490 P.2d 537, make it clear that the fact that defendant did not expressly object to the mistrial does not amount to a “consent” within the meaning of the rule above stated. It follows that the sole issue before us is whether the trial court acted within its legal discretion in concluding that legal necessity existed for its action. We conclude that the trial court acted properly.

Other than the fact that this case also involves the issue of silence as constituting consent, neither Curry nor Compton is factually in point here. In Curry, the mistrial was held to have been improperly granted because it was based on a mere erroneous admission of evidence; in Compton, the mistrial was improperly granted both because the trial court had not held a hearing on an allegation of juror bias and because the only evidence of such alleged bias was equivocal and did not clearly show anything more than the juror's possible dislike for the crime involved. Here, there was a full hearing and the juror testified positively that he could not, in the light of the outside information that he had improperly secured, render a fair verdict but was definitely prejudiced against petitioner.1 People v. Huff (1967) 255 Cal.App.2d 443, 63 Cal.Rptr. 317, also involved a situation dissimilar to the case at bench. In Huff, we held that a mistrial was improperly declared without a proper hearing at which allegedly improper conduct of the defendant there could be either denied or explained.

It is clear that the hearing disclosed that the juror ror in question could not cast a vote based solely on the evidence introduced at the trial and that he had become a non-impartial juror. The trial court followed the procedure prescribed by section 1120 of the Penal Code and properly determined that good cause existed for the juror's discharge.2 Since there were no alternate jurors and defendant had refused to proceed with 11 jurors, section 1123 required the discharge of the jury and a retrial.3

We are aware of language in Curry reading “A defendant may choose not to move for or consent to a mistrial for many reasons. He may be of the opinion that no error in fact occurred, or if it occurred, that it was not prejudicial. He may believe that any error in admitting improper evidence can be cured by a motion to strike or a request for admonition, or can be refuted by impeachment of the witness or contrary defense evidence. Indeed, even when a palpably prejudicial error has been committed 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 in the name of a paternalistic concern for his welfare.” (2 Cal.3d 707, 717, 87 Cal.Rptr. 361, 367, 470 P.2d 345, 351.) That language, however is directed to mistrials based on error committed during a trial; it has no applicability to a situation, such as the one herein involved, where a mistrial is declared because a valid jury can no longer be had.

The petition is denied.

I dissent.

I disagree with the majority's view that a juror's expressed attitude indicating a possible bias against defendant constituted “legal necessity” for the discharge of the jury in the midst of the trial and authorized the trial court to declare a mistrial without obtaining defendant's consent thereto, and without thereby placing defendant in double jeopardy for the same offense.

The majority seeks to distinguish the case before us from Curry v. Superior Court (1970) 2 Cal.3d 707, 87 Cal.Rptr. 361, 470 P.2d 345 and People v. Compton (1971) 6 Cal.3d 55, 98 Cal.Rptr. 217, 490 P.2d 537. I think Curry and Compton are dispositive in this matter and require that the writ of prohibition be issued to prevent a second trial of defendant on this information charging him with robbery.

The majority relies upon the language of Penal Code sections 1120 and 1123. In the main, these two sections provide that a juror may be discharged for “good cause” and a mistrial declared. The majority seems to equate the concept of “good cause” for the purpose of discharging a juror and declaring a mistrial with that of the question of “legal necessity” for declaring a mistrial.

The question of what constitutes “good cause” which prevents a juror from being able to perform his duty is not the test for a trial court's authority to declare a mistrial without a defendant's consent, in the light of the double jeopardy provisions of the California Constitution. Statutes such as Penal Code sections 1120 and 1123 cannot give the trial court authority, without a defendant's consent, to declare a mistrial without putting defendant in double jeopardy, if the mistrial is declared by the trial court on grounds not constituting “legal necessity” as the decisional law of this state has defined that term. Legal necessity is required in order to avoid placing a defendant in double jeopardy contrary to his constitutional rights.

By equating “good cause,” as used in Penal Code sections 1120 and 1123, with the concept of “legal necessity” for declaring a mistrial, the majority seeks to have the Penal Code provisions override the constitutional provisions pertaining to double jeopardy.

A juror's action may well constitute “good cause” for purposes of excusing such juror under Penal Code section 1120 or Penal Code section 1123, without defendant's consent, but still be insufficient to constitute “legal necessity” to authorize a trial judge to declare a mistrial without violating defendant's constitutional double jeopardy rights. Thus, if in the midst of a jury trial, a juror were to have a stroke and become totally disabled, such a fact would clearly constitute “legal necessity” for purposes of authorizing a mistrial without a defendant's consent and without contravening defendant's constitutional protection against double jeopardy. But juror misconduct which does not preclude the juror from continuing to serve as a trial juror does not constitute legal necessity such as the fact of a juror's illness which both physically and mentally precludes that juror from continuing as a juror.

In Compton, there was disclosed to the trial court information that an alternate juror had expressed to a barber that he didn't like to be on a case such as the one in which he was an alternate juror because it was hard to keep an open mind. This expression by the alternate juror was deemed by the trial judge to constitute adequate cause to declare a mistrial and discharge the jury, without any need to obtain the defendant's consent to the mistrial. The Compton court held that the circumstances did not justify a mistrial without the consent of the defendant. Since the mistrial had been declared without a “legal necessity” therefor existing within the meaning of Curry, the jury discharge was held to constitute a violation of the defendant's constitutional double jeopardy rights.

The Compton court pointed out that, even if the juror had been a regular juror rather than an alternate, and had made the same expression of his feelings about the case, it was doubtful whether such a showing would constitute legal necessity to justify discharging the jury. The Compton court considered that the alternate juror's remarks were equivocal at best; that “they could have signified that he was incapable of ‘acting with entire impartiality’ (Pen.Code s 1073), but they could also have meant only that he found the facts of the case distasteful and would be compelled to make a special effort to remain objective, although he was capable of doing so.” (Compton, supra, 6 Cal.3 55, 59-60, 98 Cal.Rptr. 217, 219, 490 P.2d 537, 539.)

In my view the remarks of the juror involved in the case at bench amounted to no more than the equivocal remarks of the alternate juror in Compton. The juror's remarks, in answer to the court's question, indicated that what the juror had seen outside of the evidence would make him inclined to determine the credibility of one of the witnesses base upon this outside observation. The trial judge should have further questioned the juror involved to determine whether the juror was in a frame of mind so that he was incapable of “acting with entire impartiality” (Pen.Code, s 1073), or whether the juror's remarks meant that he could still be objective but that it would require a special effort for him to remain objective.

I consider that Compton, therefore, mandates a holding in the case at bench that the declaration of a mistrial and the discharge of the jury were without “legal necessity.” Hence, this action by the trial judge should be held to preclude a retrial of defendant for the same offense since “ ‘a discharge of that jury without a verdict is equivalent in law to an acquittal and bars a retrial, unless the defendant consented thereto or legal necessity required it.’ ” (Compton, supra, 6 Cal.3d 55, 59, 98 Cal.Rptr. 217, 219, 490 P.2d 537, 539.)

But even if the expression of the juror in the case at bench be considered unequivocal and a statement that he was unable to act with impartiality after obtaining the outside information, I do not read Curry and Compton as authorizing a mistrial absent the defendant's consent without such mistrial being considered a violation of defendant's constitutional double jeopardy rights. I read the Curry and Compton decisions as holding that there can be misconduct of a juror which constitutes “good cause” for his discharge but which is insufficient to constitute “legal necessity” to dispense with the defendant's consent to such declaration of a mistrial and discharge of the jury without violating defendant's constitutional double jeopardy rights.

It is to be noted that Compton approved of the Curry view by stating: “As we reiterated in Curry, however, ‘In California, legal necessity for a mistrial typically arises from an inability of the jury to agree (citations) or from physical causes beyond the control of the court (citations), such as the death, illness, or absence of judge or juror (citations) or of the defendant (citations). A mere error of law or procedure however, does not constitute legal necessity.’ ” (Compton, supra, 6 Cal.3d 55, 61, 98 Cal.Rptr. 217, 221, 490 P.2d 537, 541.)

As can be observed from the Compton court's emphasis on the Curry language, “legal necessity” for a mistrial, based upon jury matters, is limited to physical causes which are beyond the control of the court. These physical causes include matters such as the death, illness or absence of a juror.

Although Compton reiterated the statement from Curry that “ ‘(a) mere error of law or procedure, however, does not constitute legal necessity’ ” (Compton, supra, 6 Cal.3d 55, 61, 98 Cal.Rptr. 217, 221, 490 P.2d 537, 541), Curry went beyond the principle that a mere error of law or procedure does not constitute legal necessity. Curry emphasized that the presence at a trial of even “a palpably prejudicial error” does not constitute “legal necessity” to authorize the trial court to declare a mistrial and discharge the jury absent the consent of the defendant without violating the defendant's constitutional right not to be placed in jeopardy a second time for the same offense.

I interpret Curry as holding that, even though a juror has conducted himself in such manner as to preclude such juror from being able to give the defendant a fair trial, such conduct is not to be deemed a “legal necessity” for declaring a mistrial and discharging the jury without the consent of the defendant.

My interpretation of Curry stems from the significance I attach to Curry's statement that “even when a palpably prejudicial error has been committed” (Curry, supra, 2 Cal.3d 707, 717, 87 Cal.Rptr. 361, 367, 470 P.2d 345, 351), it does not constitute legal necessity to declare a mistrial without defendant's consent. This principle set forth in Curry is derived from the fact that a defendant may waive the constitutional prohibition against double jeopardy. Although such a waiver is not to be inferred from a defendant's silence upon the trial court's announcement that it intends to declare a mistrial, a simple request of defendant by the trial judge concerning whether defendant desires a mistrial, may obtain a response that will constitute a waiver of the double jeopardy constitutional right. The trial court “must avoid depriving the defendant of his constitutionally protected freedom of choice in the name of a paternalistic concern for his welfare.” (Curry, supra, 2 Cal.3d 707, 717, 87 Cal.Rptr. 361, 367, 470 P.2d 345, 351.)

In the case at bench, the majority takes the view that, where jury misconduct is concerned, a defendant should not be given the freedom of choice to waive the constitutional protection against double jeopardy and take his chance with a jury which might contain a single juror not fully free from bias. But this freedom of choice is exactly what Curry sanctions in the case of a clear-cut prejudicial error.

The majority interprets Curry as limiting the constitutional waiver right to matters outside of the makeup of a jury. Because Curry did not specifically list juror misconduct as an example of errors which fall outside of the concept of legal necessity for authorizing a mistrial without defendant's consent, the majority concludes that jury misconduct constitutes an error which comes within the concept of legal necessity.

But I do not so construe the Curry opinion. I fail to see any valid distinction between “a palpably prejudicial error” consisting of an evidentiary ruling, and a “palpably prejudicial error” consisting of permitting a possibly biased juror to remain on the jury. The appropriate procedure rests with the trial judge in both instances. In either case, the trial judge may, without seeking to obtain defendant's consent to a mistrial, simply continue the trial and, if defendant is convicted, grant him a new trial. On the other hand, the trial judge may seek to obtain defendant's consent to a mistrial. If defendant consents, no double jeopardy problem results from the granting of a mistrial. If defendant refuses to consent to the proposed declaration of a mistrial, the trial proceeds, with defendant having exercised his freedom of choice to proceed at the peril of being convicted.

I am unable to see any logical distinction between types of prejudicial error insofar as whether such errors constitute legal necessity to authorize a mistrial and discharge of a jury without defendant's consent and without contravening defendant's constitutional protection against double jeopardy. A jury will probably be equally prejudiced against a defendant regardless of the nature of the error. In neither situation should it be declared a legal necessity for the trial court to declare a mistrial in the absence of defendant's consent.

The Curry court set forth the rule, without equivocation, that “except in the limited instances of ‘legal necessity,’ the policy underlying the prohibition against double jeopardy will best be served by firmly adhering to the rule that after jeopardy has attached no mistrial can be declared save with the defendant's consent.” (Curry, supra, 2 Cal.3d 707, 717-718, 87 Cal.Rptr. 361, 367, 470 P.2d 345, 351.) (Emphasis added.) The limited instances are described by Curry as follows: “In California, legal necessity for a mistrial typically arises from an inability of the jury to agree (citations) or from physical causes beyond the control of the court (citations), such as the death, illness, or absence of judge or juror (citations) or of the defendant (citations).” (Id. at 713-714, 87 Cal.Rptr. at 364, 470 P.2d at 348.)

I submit that the juror misconduct involved in the case at bench whether described as equivocal or unequivocal does not fall within “the limited instances of ‘legal necessity.’ ” (Id. at 717, 87 Cal.Rptr. at 367, 470 P.2d at 351.) Rather, such jury misconduct more properly comes within the category of “(a) mere error of law or procedure,” which “does not constitute legal necessity.” (Id. at 714, 87 Cal.Rptr. at 365, 470 P.2d at 349.)

I would grant the petition for writ of prohibition.

FOOTNOTES

1.  “THE COURT: Now, you have indicated to the Court that you think that because you saw those in the paper that that would affect your ability to judge the case fairly?“THE JUROR: Yes, sir.“THE COURT: So you would determine, would be inclined to determine the credibility of one of the witnesses depending on what you observed from the newspaper?“THE JUROR: I would, sir.“THE COURT: All right.“THE JUROR: I don't think it would be fair to Mr. Larios if I would use that or use that to influence the rest of the jurors.”

2.  “If a juror has any personal knowledge respecting a fact in controversy in a cause, he must declare the same in open court during the trial. If, during the retirement of the jury, a juror declare a fact which could be evidence in the cause, as of his own knowledge, the jury must return into court. In either of these cases, the juror making the statement must be sworn as a witness and examined in the presence of the parties in order that the court may determine whether good cause exists for his discharge as a juror.”

3.  “If before the jury has returned its verdict into court, a juror becomes sick or upon other good cause shown to the court is found to be unable to perform his duty, the court may order him to be discharged. If any alternate jurors have been selected as provided by law, one of them shall then be designated by the court to take the place of the juror so discharged. If, after all alternate jurors have been made regular jurors or if there be no alternate juror, a juror becomes sick or otherwise unable to perform his duty and has been discharged by the court as provided herein, the jury shall be discharged and a new jury then or afterwards impaneled, and the cause may be again tried.”

KINGSLEY, Associate Justice.

FILES, P. J., concurs.