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The PEOPLE, Plaintiff and Respondent, v. Randall Blaine PIERCE, Defendant and Appellant. IN RE: Randall Blaine PIERCE on Habeas Corpus.
A jury convicted defendant, Randall Blaine Pierce, of one count each of forcible oral copulation (Pen.Code, § 288a, subd. (c)), forcible sodomy (Pen.Code, § 286, subd. (c)), and false imprisonment (Pen.Code, § 236) (super. ct. case No. R236588). He was sentenced to full consecutive middle terms for the two sex offenses and to a consecutive term for false imprisonment equal to one-third the middle term, for a total of twelve years and eight months. In addition defendant was ordered to pay a $1,000 restitution fine (Gov.Code, § 13967) and a $200 fine for sex offenders (Pen.Code, § 290.3).
At the same time the court found that defendant, by virtue of his having been convicted of the above offenses, had violated the terms of probation granted him following an earlier conviction for assault (super.ct. case No. R253540). The court declined to reinstate probation and sentenced him to the middle term for that offense, stayed imposition of two-thirds the term, and ordered the remaining one-year term to run consecutively to the sentence imposed in case No. R236588.
On appeal from the judgments in both cases defendant asserts numerous errors involving alleged juror incompetence and misconduct, evidentiary issues, and sentencing. He has also filed a petition for writ of habeas corpus making similar claims regarding jury selection and alleging ineffective assistance of counsel. We have consolidated the appeal and petition and will find defendant was denied a fair trial because one of the jurors was mentally incompetent to serve. Accordingly we will reverse the judgments on appeal and remand for new trial. The issues raised in the writ petition having thus been rendered moot, the petition will be denied.
It is unnecessary for the purposes of our review to provide more than a short summary of the facts.
Defendant and Carla M. dated briefly in 1990 but then had little contact with one another until the present incident occurred on January 4, 1992. That night defendant persuaded Carla to accompany him to a house in Modesto on the pretext of discussing her current boyfriend who reportedly was in some sort of danger. Once they arrived, however, defendant began acting in a threatening manner and refused to allow her to leave. Fearful for her safety if she refused to cooperate, Carla eventually went with defendant to a bedroom where he forced her to orally copulate him. He then sodomized her before falling asleep. After about 15 minutes Carla attempted to get up from the bed but defendant grabbed her and pulled her back. When he awoke several hours later Carla convinced him to let her leave by telling him she loved him.
Later that day Carla called and told a friend she had been raped. However she was ashamed of what had happened and did not contact the police until the next day. An officer arranged to meet her at the hospital where she gave a full report of the incident and underwent a partial rape examination. The results of the examination were consistent with her account of having been sodomized.
In his defense defendant testified Carla asked him to meet her that night to talk about something and have sex. They drove to the house in Modesto where they engaged in consensual oral copulation and sodomy, as they had in the past.
Jury Selection Issues
Shortly after the jury returned its verdict, defendant moved for a new trial on the ground he had recently learned one of the jurors was mildly mentally retarded and was therefore incompetent to serve on the panel. A hearing followed at which a psychologist testified the juror had an IQ of 66, had difficulty understanding relatively simple language and concepts, and was “gravely disabled” in that she was unable to provide for many of her basic living needs without assistance (which assistance in fact she received as a resident of a supervised group home). The court denied the motion relying primarily on the fact the juror was not a conservatee and so was not disqualified from jury service by section 203 of the Code of Civil Procedure (disqualifying those persons among others “who are the subject of conservatorship”).
On appeal defendant contends the juror's presence on the panel violated his due process right to a jury of 12 mentally competent persons. He also seeks reversal on the ground the juror committed prejudicial misconduct by failing to disclose her disability during voir dire. In response the People argue defendant is precluded by the doctrines of waiver and invited error from raising these contentions on appeal and, in any event, the record fails to establish the juror was either statutorily ineligible to serve or was mentally incompetent.
Defendant has also filed a petition for writ of habeas corpus based upon the same record supplemented by declarations providing more information about the juror's history, disability, and behavior during trial. In addition to reiterating his claims the juror was incompetent and failed to disclose her disability, defendant argues she committed prejudicial misconduct by failing to reveal that she herself had been the victim of sexual abuse and by deciding he was guilty before the case was submitted to the jury. Other declarations allege the county public defender learned of the juror's disability during trial but failed to disclose this information to the trial deputy until after the jury rendered its verdict, and then failed to disclose his office's prior knowledge of the disability to the court in pleadings accompanying the new trial motion. These omissions, defendant urges, constituted ineffective assistance of counsel.
We first address defendant's claims on appeal.
1. Juror Incompetence.
A. Voir Dire.
The limited voir dire in this case was conducted entirely by the trial judge and consisted largely of general questions directed to all prospective jurors. The challenged juror was one of the first twelve called to the jury box. After making some brief introductory remarks and reading the charges, the court asked each to state their occupation, the name and occupation of their spouse, and whether they had served on a jury before. The juror in question responded:
“[The juror]: A. My name is [ ] and I work at Ross's Dress For Less. And I have never been here before. This is my first time.
“THE COURT: All right. Single?
The court then asked the prospective jurors whether any one of them had been the victim of a sexual offense or, more generally, whether the nature of the charges would make it difficult for them to be fair and impartial.1 There was no response from any prospective juror. One person was later excused by stipulation after expressing doubts about her ability to discuss the charges with the other jurors. Still later the court asked:
“[THE COURT:] Do any of you know of any reason at all, perhaps something I haven't touched in my voir dire, that would bear upon your qualities to serve as a fair and impartial juror; perhaps something I haven't touched upon that might affect your ability to serve? Nothing? All right.”
Both sides passed for cause. The prosecution exercised a peremptory challenge; two persons were excused by stipulation because of their feelings about the charges; the defense passed; the prosecution exercised a second peremptory challenge; both sides passed; and the jury was sworn. No alternate juror was requested or selected.
B. Waiver and Invited Error.
Relying largely on People v. Hill (1992) 3 Cal.4th 959, 13 Cal.Rptr.2d 475, 839 P.2d 984, the People argue defendant waived his right to challenge the juror's competence on appeal by failing to make any inquiry of her during voir dire which might have revealed her disability.
The defendant in Hill expressly assented at trial to seating a juror knowing she was not competent to serve because she was no longer a resident of the county in which the trial was held, and then sought to challenge the juror's competence for this reason on appeal. In declining to consider the objection the court stressed the defendant's prior knowledge of the juror's change of residence. It stated:
“ ‘ “To permit prisoners to avail themselves, after verdict, of preexisting objections to the competency of jurors, as a matter of right, would not only be unreasonable, but most mischievous in its consequences․ A prisoner knowing or willfully remaining ignorant of the incompetency of a juror, would take the chances of a favorable verdict with him upon the jury; and if the verdict should be adverse, would readily enough make the affidavit necessary to avoid its effect.” ’ [Citations.] We see no reason to depart from the well-established rule.” (People v. Hill, supra, 3 Cal.4th at pp. 985–986, [13 Cal.Rptr.2d 475, 839 P.2d 984] quoting People v. Mortier (1881) 58 Cal. 262, 267.)
In this case, by contrast, defense counsel was unaware of the juror's disability during jury selection. Moreover nothing in the record suggests the juror's statements or demeanor during the brief voir dire should have alerted defendant to make further inquiry.2 Indeed the juror failed to respond to the one general inquiry which might have been expected to raise questions about her competence. To hold that defendant chose to remain “willfully ignorant” of the juror's disability upon these facts would be to demand of him an unwarranted degree of clairvoyance under the circumstances.
Further the right implicated in Hill—the right to be tried by a jury drawn from the area (vicinage) where the crime was allegedly committed—is qualitatively different from that involved here. A defendant's vicinage right is not among those which have been held to be so fundamental as to require an express personal waiver by the defendant. (People v. Guzman (1988) 45 Cal.3d 915, 248 Cal.Rptr. 467, 755 P.2d 917.) This is so because the right is not a purely personal one; unlike the right to a jury trial or to counsel, it does not exist exclusively to ensure the defendant a fair trial but also protects the interests of the community at large. (Id. at p. 936, 248 Cal.Rptr. 467, 755 P.2d 917.) Thus it may be waived by counsel even over the defendant's objection. (Id. at p. 937, 248 Cal.Rptr. 467, 755 P.2d 917.)
On the other hand,
“there can be no question but that the right to a trial before mentally competent jurors is as fundamental as the right to trial before unbiased and unprejudiced jurors which our courts have held to be an ‘ “inseparable and inalienable part of the right to trial by jury guaranteed by the Constitution.” ’ [Citation.]” (Church v. Capital Freight Lines (1956) 141 Cal.App.2d 246, 248, 296 P.2d 563.)
It is well established that only an express waiver by a criminal defendant is sufficient to forego the right to a jury trial. (People v. Ernst (1994) 8 Cal.4th 441, 34 Cal.Rptr.2d 238, 881 P.2d 298; In re Horton (1991) 54 Cal.3d 82, 95, 284 Cal.Rptr. 305, 813 P.2d 1335.) The same degree of formality is required to accept a jury with less than 12 members. (People v. Ames (1975) 52 Cal.App.3d 389, 124 Cal.Rptr. 894; People v. Maes (1965) 236 Cal.App.2d 147, 45 Cal.Rptr. 903.) In the absence of any such formality in the instant case, we conclude defendant has not waived his right to challenge the juror's competence on appeal.
Likewise the doctrine of invited error does not apply. As its name implies, the doctrine rests on the principle that a defendant who, for tactical reasons, induces the court to commit an error should be estopped from asserting it as a ground for reversal. (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 301, p. 313.) It thus presupposes the defendant was not only aware of the error but intentionally caused it to occur. As discussed, that was not the case here.
C. The Hearing on Defendant's New Trial Motion.
Information about the juror's mental abilities came primarily from the testimony of a clinical psychologist, Randall Epperson, Ph.D., at the hearing on defendant's new trial motion. According to Dr. Epperson, he had evaluated approximately 200 persons with retarded level IQ's within the previous 15 years and currently served on a panel of doctors established to assess the intellectual level of persons referred for services to the Valley Mountain Regional Center. He explained the regional center provides services to persons with an IQ in the retarded range, i.e., below 70. The juror in question was a client of the regional center and a long-term resident of a group home.
Dr. Epperson expressed an opinion regarding the juror's competence based upon his review of evaluations prepared by two other psychologists in 1986 3 and upon two brief interviews he held with her at the courthouse. Based on the results of standardized intelligence tests, the two evaluations both found the juror had an IQ of 66 which Dr. Epperson explained was in the mild range and which would be reflected in limited language comprehension and reasoning ability. For example, a person functioning at that level would be unlikely to understand the meaning of words such as “enormous,” “conceal” or “sentence” or be able to explain why some foods need to be cooked or how a dog and a lion are similar. The doctor also expressed his belief, based upon the juror's history of delayed development, that her condition was chronic and unlikely to have changed since 1986.
At this point in the proceedings the prosecutor objected that the only question before the court was whether the juror was “the subject of conservatorship” within the meaning of Code of Civil Procedure section 203.4 He argued the statute applies only to persons who are actually under a conservatorship and, since it was agreed the juror in this case was not, the doctor's opinion about her mental abilities was irrelevant. The court indicated it tended to agree with this reasoning but permitted further questioning subject to its own later motion to strike the testimony. It appears the primary question in the court's mind was whether the statute might also apply to persons who, although not under a formal conservatorship, would qualify for one if an appropriate application were made.
Dr. Epperson then testified he had done evaluations for the county conservator's office and believed the juror would qualify for a limited conservatorship were she not living in a group home and receiving the services of the regional center. That is, he considered her “gravely disabled” 5 in that she was unable to provide for her own food, clothing and shelter needs without assistance. In particular, she would be unable independently to earn enough money to support herself or to manage her money effectively. Nor would she be able to fully understand “what's going on around her in society” or to develop the structure in her life necessary to live alone.
Returning to the general subject of the juror's competence, Dr. Epperson testified she would have difficulty functioning in a trial setting because of her shortened attention span and her inability to process testimony at the normal rate of speech. Moreover she would be unlikely to appreciate the need to have testimony read back to her if she did not understand it or to resist peer pressure by making such a request.
Following Dr. Epperson's testimony the court received the following additional evidence by way of stipulation: defendant's mother observed the juror pacing and muttering to herself in the hallway of the courthouse and heard her say “ ‘I don't blame her; I know how she feels,’ ” referring to the victim; 6 the juror did not participate in jury deliberations and generally acted in an “odd manner” during the trial; her case worker at the regional center believed the juror would be able to move out of the group home and live independently within the foreseeable future if she continued to receive help with her finances and legal matters; at the time of the trial the juror worked twenty hours per week at Ross Dress For Less helping customers check into changing rooms, had received a promotion and several pay raises in the two and one-half years she worked there, and was able to arrange by herself to get to and from work on public transportation; and finally that two case workers at the regional center had intended but failed to notify the jury commissioner of the juror's disability.
The court then took the matter under submission. It subsequently denied the new trial motion without further discussion.
As noted, the trial court apparently based its denial of the new trial motion on its conclusion the juror was not disqualified from jury service by section 203 of the Code of Civil Procedure. However, whether or not this is true, i.e., that the juror was in need of a conservatorship, does not finally resolve the ultimate issue of her competence: whether she had the mental ability to fulfill her duties as a juror. Section 203 merely eliminates certain categories of persons from the pool of prospective jurors; it cannot be construed reasonably to say that all persons who do not fall within one of the categories of that section are necessarily fit to serve.
A criminal defendant has a due process right to a jury whose members are both impartial and mentally competent to afford a fair hearing. (Jordan v. Massachusetts (1911) 225 U.S. 167, 176, 32 S.Ct. 651, 652, 56 L.Ed. 1038; United States v. Hall (4th Cir.1993) 989 F.2d 711, 714.) Jurors are presumed to satisfy these requirements and a party claiming otherwise bears the burden of proving his contention by a preponderance of the evidence. (Church v. Capital Freight Lines, supra, 141 Cal.App.2d at p. 248, 296 P.2d 563.) Nevertheless the verdict must be set aside if there is clear evidence a juror was incapable at the time of trial of understanding and determining the issues. (United States v. Hall, supra, 989 F.2d at p. 714.)
Here the evidence pertinent to the juror's mental competence is essentially uncontroverted. (Compare United States v. Allen (5th Cir.1979) 588 F.2d 1100 [substantial evidence juror was able to understand the proceedings despite prior adjudication of incompetence and inappropriate behavior during trial].) There is no real dispute she was mildly mentally retarded at the time of the trial. (Compare United States v. Hall, supra, 989 F.2d 711 [evidence conflicting as to whether juror previously diagnosed as schizophrenic was mentally competent when trial occurred]; United States v. Dioguardi (2d Cir.1974) 492 F.2d 70 [no history or prior determination of disability]; Church v. Capital Freight Lines, supra, 141 Cal.App.2d 246, 296 P.2d 563 [evidence conflicting as to whether a juror later committed to a state hospital was mentally competent during trial].) According to Dr. Epperson, someone in her situation would be unable to follow along with the testimony or understand much of the language used during the trial, to weigh the evidence and make factual determinations, or to understand and apply the law to the facts. That she was able to function effectively in other situations when provided with the necessary structure and support, although not bearing directly on her fitness as a juror, perhaps reinforces the conclusion she would have difficulty if such support were lacking.
Further Dr. Epperson's opinion was based upon his personal, albeit brief, interviews with the juror as well as on his review of her history and test results. And his assessment was consistent with reports the juror had acted oddly during the trial and taken no part in deliberations. (Compare United States v. Allen, supra, 588 F.2d 1100 [experts did not personally examine juror]; United States v. Dioguardi, supra, 492 F.2d 70 [same; nothing in juror's demeanor during trial suggested she was mentally incompetent].)
Finally, in evaluating the juror's competence, it is appropriate to consider defendant's related claim of misconduct because the underlying behavior also bears on the juror's ability to understand and perform her duties as a juror. Defendant points in particular to the juror's failure to reveal her disability in response to the court's general inquiry of the prospective jurors about any undisclosed factors which might affect their ability to serve.
It seems to us a mentally incompetent juror is unlikely to fully appreciate the nature of his or her disability or to understand the need to disclose it on voir dire, particularly in response to so general a question as was asked here. “[T]he very nature of the affliction would preclude the application of any rule predicated upon rationalization such as the intentional or unintentional failure to disclose one's disqualification.” (Church v. Capital Freight Lines, supra, 141 Cal.App.2d at p. 248, 296 P.2d 563.) Thus the juror's failure to respond to the court's general inquiry, although not rising to the level of misconduct, lends further support to the conclusion she was incapable of fully comprehending the proceedings.
In sum, the evidence convincingly establishes the juror in question was not mentally competent to act as a juror at the time of the trial. Consequently defendant failed to receive a fair trial and reversal is required notwithstanding the People's contention that no resulting prejudice has been shown. (Rose v. Clark (1985) 478 U.S. 570, 578, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 [harmless error analysis presupposes a trial before an impartial judge and jury]; United States v. Hall, supra, 989 F.2d at p. 714.)
2. Ineffective Assistance of Counsel.
In view of this conclusion we do not reach defendant's related claims of juror incompetence and misconduct raised in his petition for writ of habeas corpus nor his claim, also raised in the petition, that the public defender's failure to promptly disclose his knowledge of the juror's disability constituted ineffective assistance of counsel. However this latter conduct may not be allowed to pass without comment.
The declarations attached to defendant's petition set out the following sequence of events. On April 20, 1993, the second day of defendant's four-day trial, Rosaria Fontana called Frank Carson, an attorney at the Stanislaus County Public Defender's Office, to convey her concern that a mentally retarded resident of the group home where she worked had been selected as a juror in this case. She told him the juror “has a level of understanding of a 12 year old child” and becomes very upset and agitated at any mention of sex because she had been sexually abused as a child. The next day, April 21, Carson recounted this conversation to the county public defender, Dallas Cole, who instructed him to say nothing about it to the trial deputy, Lewis Wentz. Carson reportedly was uncomfortable with this directive and discussed it with another attorney in the office, Bernie Fairfield, but did not in fact say anything to Wentz at that point.
In his declaration Cole acknowledges telling Carson to withhold the information from Wentz. He states the trial was then in the middle of closing arguments or jury instructions and time was needed to verify Fontana's report. However, according to Wentz, Carson later told him Cole's directive was based on his (Cole's) belief the jury's deliberations were going well for the defense because the court had received several notes from the jury.7 Wentz disputes this assessment—saying he believed there was a “strong possibility” his client would be convicted—and states he would have moved for a mistrial had he received the information before the jury returned its verdict.
Several hours after the jury returned its verdict, Carson told Wentz about his conversation with Fontana. Some days after that, Wentz discussed a new trial motion with Cole and Fairfield. According to Wentz, Fairfield suggested the public defender's office had been ineffective for failing to promptly pass the information on to him (Wentz) and recommended the office withdraw from the case based on the resulting conflict. Cole, however, rejected this course. In addition he directed Wentz to omit any reference in the new trial motion to the fact that the office had knowledge of the juror's disability prior to the verdict. And he asked to review the pleadings before they were filed to confirm they contained no such reference. Cole, in his declaration, states he does not recall discussing with Wentz the possibility of declaring a conflict; he may have asked to review the new trial motion but his policy was to give advice rather than direct orders to his attorneys about how to handle their cases.
After discussing the matter with several other people, Wentz filed a new trial motion which made no mention of the office's prior knowledge. However he asserts he would have included the information had he not been directed by Cole to omit it and he would have disclosed it in any event in response to a direct question by the court or the prosecutor. Neither, however, asked such a question at the hearing.
An attorney is obliged “[t]o maintain the respect due to the courts of justice and judicial officers” and “[t]o employ, for the purpose of maintaining the causes confided to him or her such means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.” (Bus. & Prof.Code, § 6068, subds. (b), (d).) “ ‘Counsel should not forget that they are officers of the court, and while it is their duty to protect and defend the interests of their clients, the obligation is equally imperative to aid the court in avoiding error and in determining the cause in accordance with justice and the established rules of practice.’ ” (Daily v. Superior Court (1935) 4 Cal.App.2d 127, 132, 40 P.2d 936, quoting Furlong v. White (1921) 51 Cal.App. 265, 271, 196 P. 903.) Indeed it is a crime to utilize deceit or collusion with the intent to deceive the court or any party. (Bus. & Prof.Code, § 6128, subd. (a).) Concealment of a material fact within the attorney's knowledge misleads the court as effectively as does an overtly false statement. (Griffis v. S.S. Kresge Co. (1984) 150 Cal.App.3d 491, 499, 197 Cal.Rptr. 771.)
Here the public defender's decision to withhold information about the juror's disability ran the risk of unnecessarily prolonging the proceedings at the expense of the court, the prosecutor, the jurors, and very possibly his own client. The decision cannot conceivably be justified as a “shrewd” tactical choice nor is it enough to argue the court might well have denied a motion for mistrial if the matter had been brought to its attention in a timely manner. We regard this a serious breach of professional ethics and condemn it in the strongest possible terms.
In view of our conclusion that the judgment of conviction must be reversed and the case remanded for retrial for reasons stated ante, it is unnecessary to consider the remaining issues raised by defendant in his appeal from the judgment in superior court case No. R236588.8 With respect to the revocation of his probation in superior court case No. R253540, defendant's sole contention is that the court failed to adequately state reasons for refusing to reinstate it. Since the convictions upon which the revocation was predicated must be overturned, so too must the revocation, irrespective of the merits of defendant's claim.
The judgments in superior court case Nos. R236588 and R253540 are reversed and the matters remanded for further proceedings in the trial court. Defendant's petition for writ of habeas corpus is denied.
1. “[THE COURT]: Now considering the nature of the offenses, a forcible sodomy, a forcible oral copulation and a false imprisonment, have any of you, any friend, acquaintance, or family member ever been a victim of such offense? [¶] Have any of you, any member of your family or any friend or acquaintance ever been charged with a similar offense? [¶] Have any of you, any member of your family or friends ever worked in a capacity where you would counsel with or meet rape victims or alleged rape victims? [¶] Is there anything about the nature of the charges that would make it difficult for you to serve as a fair and impartial juror just because of the nature of the charges?”
2. At an unreported bench conference following his voir dire, the judge asked both counsel whether they wished him to ask any further questions but received no affirmative response.
3. The transcript and original minutes of the hearing indicate the two reports were received into evidence by the court. However the court subsequently amended the minutes to say the reports “were not handed to the Court, were not marked as evidence, and were not reviewed by the Court.” Consequently the reports are not part of the record on appeal.
4. Section 203 of the Code of Civil Procedure provides in pertinent part: “(a) All persons are eligible and qualified to be prospective trial jurors, except the following: [¶] ․ (8) Persons who are the subject of conservatorship․ [¶] (b) No person shall be excluded from eligibility for jury service in the State of California, for any reason other than those reasons provided by this section.”
5. With respect to conservatorship, “gravely disabled” is defined in section 5008, subdivision (h)(1)(A), of the Welfare and Institutions Code to include “A condition in which a person, as a result of a mental disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter.”
6. According to defense counsel at the new trial hearing, the mother reported her observations to him and he in turn conveyed the information, at least informally, to the trial judge.
7. In fact the record indicates the jury retired to deliberate at 3:54 p.m. on April 21. The court reconvened the next day at 10:22 a.m. to respond to three questions from the jury. It convened again at 11:20 a.m. in response to another note from the jury reporting it was stuck at nine to three after one vote. The jury was instructed to continue its deliberations and returned with its verdict at 1:50 p.m.
8. Defendant also challenges (1) the admission of testimony by the doctor and nurse who examined Carla that her demeanor and physical condition was consistent with other alleged rape victims they had examined; (2) the admission of testimony by several witnesses that Carla told them she had been raped; (3) the court's refusal to permit the defense to cross-examine Carla about the nature of her previous sexual relations with the defendant; (4) the court's imposition of full consecutive terms for the two sexual offenses; (5) the court's imposition of the restitution and sexual offender fines without consideration of his ability to pay; and (6) the court's calculation of his presentence custody credits.
MARTIN, Acting Presiding Justice.
DIBIASO and HARRIS, JJ., concur.
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