THE PEOPLE v. CIRILO ESCOBAR ARIAS (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Cirilo Escobar Arias was convicted by a jury of four counts of child molestation.  (Pen.Code, § 288, subd. (a).) ¹  He was sentenced to five years in prison.   He appeals, contending that his constitutional right to a fair and impartial jury was violated because the court did not allow him to waive his right to a 12–person jury.   We find his contention to be without merit and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of this case are not pertinent to this appeal.   It will suffice to observe that appellant was charged with one count of habitual molestation (§ 288.5, subd. (a)) and four counts of child molestation (§ 288, subd. (a)) of his wife's granddaughters.   Jury selection commenced on September 21, 2009.   Twelve jurors and two alternates were empaneled.   The defense unsuccessfully attempted to challenge the second alternate (juror number 17) for cause.   During trial, one of the jurors was excused and the first alternate was placed in her spot.

On Friday, October 2, 2009, the court read final instructions to the jury and at 3:10 p.m., the jury retired to begin deliberations.   On Monday, October 5, 2009, when court reconvened, it announced that one juror was no longer present.

Defense counsel indicated that he had discussed the situation with appellant, and both of them were concerned about the remaining alternate because of what she had said during voir dire.   Defense counsel stated that “we would prefer to have a mistrial rather than have her added into the jury, so I'm therefore moving for one.”   The court denied the motion and defense counsel stated, “In the alternative, we feel strongly enough about this that we would prefer to waive my client's right to a unanimous jury of 12 people and be willing to proceed with 11 jurors that can decide the case unanimously rather than have this last alternate placed on the jury.”   The deputy district attorney who appeared that day was not the trial attorney and requested that the court allow the trial attorney to come in because she was not familiar enough with the case.   The court responded:  “I'm not inclined to do it.   The motion to proceed with 11 jurors will be denied.”   It then called in the jurors, and announced that it would be substituting the alternate for juror number 12.   The jury then reconvened for deliberations.

The next day, Tuesday, October 6, 2009, the jury indicated that it had reached a verdict of guilty on counts 2, 3, and 4, and announced it could not reach a verdict on count 1.

DISCUSSION

Appellant contends that his constitutional right to a fair and impartial jury was violated because he was not allowed to proceed with an 11–person jury.   He argues that because he has a fundamental right to waive trial by a 12–person jury, he has a constitutional right to have an 11–person jury.   Appellant claims that the court's refusal to allow trial to proceed with only 11 jurors constituted structural error.²

“Although the right to a 12–person jury is fundamental, it may be waived.   (People v. Collins [ (2001) ] 26 Cal.4th [297,] 305.)   A waiver of the right to a jury trial requires an express waiver by the defendant in open court.   (People v. Ernst (1994) 8 Cal.4th 441, 448.)  ‘Waiver by counsel is not sufficient․’  (In re Tahl (1969) 1 Cal.3d 122, 131.)   This follows from the language in article I, section 16 of the California Constitution, providing that the right to a jury ‘may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant's counsel.’  (Italics added;  see People v. Ernst, supra, at p. 448.)  [Fn. omitted.]”  (People v. Traugott (2010) 184 Cal.App.4th 492, 500–501.)

The Attorney General argues that because appellant did not expressly waive his right to proceed with an 11–person jury, the court properly refused his counsel's request to excuse the alternate juror.   Appellant counters that his attorney informed the trial court that appellant would agree to utilize 11 jurors and the court failed to inquire further.   Appellant appears to be correct;  however, that fact does not compel a new trial.   Even if we were to assume that the prosecutor would have agreed to defense counsel's proposal to excuse the alternate juror (a rather large assumption given that:  (1) it would have created an avoidable irregularity in the process;  (2) appellant's challenge for cause with respect to the alternate juror was denied;  and (3) the prosecutor declined to exercise a peremptory and accepted the juror), the question remains whether the trial court would have been bound by that agreement.   We conclude the court had the authority to seat the alternate juror even if the parties had reached an agreement to the contrary.

“ ‘Every court has the inherent power, in furtherance of justice, to regulate the proceedings of a trial before it;  to effect an orderly disposition of the issues presented;  and to control the conduct of all persons in any manner connected therewith.  [Citations.]  The exercise of this power is a matter vested in the sound legal discretion of the trial court, subject to reversal on appeal only in those instances where there has been an abuse of that discretion.’  [Citation.]”  (Schimmel v. Levin (2011) 195 Cal.App.4th 81, 87.)   A court has an interest in ensuring that a trial is conducted in an orderly fashion.   A trial conducted with 12 jurors is a recognized cornerstone of our system of justice.   A verdict rendered by a jury comprised of 11 members is an anomaly that potentially creates an issue for appeal.   We cannot conclude that a court's decision to utilize an alternate juror to avoid that result is an act beyond the bounds of reason.   Here, the trial court chose to continue jury deliberations by seating the remaining juror who was selected properly after the parties had an opportunity to question her.   We discern no error.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All undesignated statutory references are to the Penal Code..  FN1. All undesignated statutory references are to the Penal Code.

FN2. Appellant does not claim this is an appeal of the denial of his challenge for cause or the denial of his motion for mistrial..  FN2. Appellant does not claim this is an appeal of the denial of his challenge for cause or the denial of his motion for mistrial.

EPSTEIN, P.J. MANELLA, J.