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The PEOPLE, Plaintiff and Respondent, v. James Richard ADAM, Defendant and Appellant.
This case poses the question of whether the “Crime Victim's Justice Reform Act,” which restricts jury voir dire by counsel, violates the federal constitution. We answer the question in the negative. We affirm the judgment following appellant's conviction by jury of selling cocaine. (Health & Saf.Code, § 11352.)
In April 1990, appellant's first trial ended in a “hung jury.” At that time, counsel were allowed to conduct jury voir dire and did so over a two day period. Proposition 115 became operative on June 6, 1990. Jury selection in the second trial commenced June 13, 1990, at which time the court stated it intended to follow section 7 of Proposition 115. The court indicated it would conduct voir dire and accept written questions from counsel. Counsel were also given 15 minutes to examine prospective jurors for cause. Defense counsel unsuccessfully objected on the ground that section 7 of Proposition 115 should only be applied prospectively.
Following the court's examination of prospective jurors regarding their background and ability to be fair, both counsel questioned the jurors. Each side exercised peremptory challenges with the defense excusing nine potential jurors. Neither side challenged any of the jurors for cause. Thereafter, the jury was sworn, trial commenced, and appellant was convicted.
Because appellant's second trial commenced after the adoption of Proposition 115, the procedure implemented by the trial court was proper. Section 7 addresses “․ the conduct of trials rather than the definition of, punishment for, or defenses to crimes․ Accordingly, the provisions ․ [which reform voir dire do not violate ex post facto principles and] may be applied to pending cases regardless of when the charged offense is alleged to have occurred.” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 299, 300, 279 Cal.Rptr. 592, 807 P.2d 434.)
Proposition 115, section 7 revised Code of Civil Procedure section 223 which now provides: “In a criminal case, the court shall conduct the examination of prospective jurors. However, the court may permit the parties, upon a showing of good cause, to supplement the examination by such further inquiry as it deems proper, or shall itself submit to the prospective jurors upon such a showing, such additional questions by the parties as it deems proper. Voir dire of any prospective jurors shall, where practicable, occur in the presence of the other jurors in all criminal cases, including death penalty cases. [¶] Examination of prospective jurors shall be conducted only in aid of the exercise of challenges for cause. [¶] The trial court's exercise of its discretion in the manner in which voir dire is conducted shall not cause any conviction to be reversed unless the exercise of that discretion has resulted in a miscarriage of justice, as specified in Section 13 of Article VI of the California Constitution.”
Appellant contends that he had a federal constitutional right to personally conduct voir dire for purposes of exercising his peremptory challenges and that the trial court's limitation violated federal constitutional standards. Not so. “Peremptory challenges are not of constitutional origin. [Citations.]” (Gray v. Mississippi (1987) 481 U.S. 648, 663, 107 S.Ct. 2045, 2054, 95 L.Ed.2d 622, 636; see also Stilson v. United States (1919) 250 U.S. 583, 586, 40 S.Ct. 28, 29, 63 L.Ed. 1154, 1156.) The United States Supreme Court in Ross v. Oklahoma (1988) 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 “․ reasoned that the right of peremptory challenge is not itself of constitutional dimension; it is a means to protect the constitutional right to an impartial jury. (See Ross, supra, 487 U.S. at p. 88 [108 S.Ct. at p. 2278, 101 L.Ed.2d at p. 90].)” (People v. Bittaker (1989) 48 Cal.3d 1046, 1086, 259 Cal.Rptr. 630, 774 P.2d 659; see also People v. Webster (1991) 54 Cal.3d 411, 438, 285 Cal.Rptr. 31, 814 P.2d 1273.)
The United States Supreme Court has acknowledged that voir dire “․ plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored.” (Rosales–Lopez v. United States (1982) 451 U.S. 182, 188, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22, 28.) While the lower federal courts have indicated that a defendant should “․ be permitted sufficient inquiry into the background and attitudes of the jurors to enable them to exercise intelligently their peremptory challenges ․” (United States v. Dellinger (7th Cir.1972) 472 F.2d 340, 368), the United States Supreme Court has never held that a defendant has the constitutional right to personally conduct the voir dire.
Since “[t]he right to voir dire ․ is not a constitutional right ․” (People v. Wright (1990) 52 Cal.3d 367, 419, 276 Cal.Rptr. 731, 802 P.2d 221; People v. Bittaker, supra, 48 Cal.3d at p. 1086, 259 Cal.Rptr. 630, 774 P.2d 659), we hold that the United States Constitution does not afford a defendant the right to personally conduct voir dire in a criminal trial.
“As for the defendant's due process rights under the Fourteenth Amendment, the Ross court ruled that although the right to exercise peremptory challenges is an important one, ‘it is for the State to determine the number of peremptory challenges allowed and ․ the manner of their exercise. [Citations.] As such, the ‘right’ to peremptory challenges is ‘denied or impaired’ only if the defendant does not receive that which state law provides.' [Citation.]” (People v. Coleman (1988) 46 Cal.3d 749, 769, 251 Cal.Rptr. 83, 759 P.2d 1260.) Here, appellant received what state law provided.
The trial court's exercise of discretion as to the manner in which voir dire was conducted was not an abuse of discretion resulting in a miscarriage of justice. (Cal.Const., art. VI, § 13; Code Civ.Proc., § 223.) Such a procedure did not adversely affect appellant's right to a fair and impartial jury.
Since appellant does “․ not claim that any of the 12 jurors who heard the case were subject to challenge for cause, or were not impartial, his [Sixth Amendment] right to an impartial jury was not abridged.” (People v. Bittaker, supra, 48 Cal.3d at p. 1086, 259 Cal.Rptr. 630, 774 P.2d 659.)
Defense counsel was afforded the opportunity to submit written questions and personally conduct voir dire. This was consistent with section 7 of Proposition 115 and the rule that the trial court has the duty “․ to restrict the examination of the prospective jurors within reasonable bounds so as to expedite the trial. [Citations.]” (People v. Wright, supra, 52 Cal.3d at p. 419, 276 Cal.Rptr. 731, 802 P.2d 221.)
Section 7 of Proposition 115 procedurally adopts the federal model of jury selection. Pursuant to Federal Rules of Criminal Procedure, rule 24(a), a federal court “․ may decide to conduct the voir dire itself or may allow the parties to conduct it.” (Rosales–Lopez v. United States, supra, 451 U.S. at p. 189, 101 S.Ct. at p. 1635, 68 L.Ed.2d at p. 29.)
Under section 7 of Proposition 115, California courts are vested with the same discretion to determine how best to conduct voir dire. “The principal purpose of this change is to concentrate jury voir dire in the hands of the judge․ It eliminates the right of attorneys to conduct voir dire in criminal cases.” (5 Witkin & Epstein, Cal. Criminal Law (2d ed, 1991 Supp.) § 2846A, p. 56.) Counsel may still suggest areas of inquiry and submit written questions. (Cal. Rules of Court, rule 228.1.) Attorney conducted voir dire, however, is entirely discretionary. “[A]fter completion of the initial examination, on request of counsel or on the court's own motion and on a showing of good cause, the court may conduct or permit counsel to conduct supplemental questioning as the court deems proper.” (Cal. Rules of Court, rule 228.2.)
“Even assuming, for the sake of discussion, that voir dire examination were erroneously restricted, a defendant cannot show that he is aggrieved by the error unless he has exercised all of the peremptory challenges available to him. [Citations.]” (People v. Morales (1988) 203 Cal.App.3d 970, 975, 250 Cal.Rptr. 240.) Appellant did not do so.
The judgment (order granting probation) is affirmed. The stay of sentence previously ordered by the trial court is vacated.
YEGAN, Associate Justice.
STONE, P.J., and GILBERT, J., concur.
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Docket No: Crim. No. B051625.
Decided: October 30, 1991
Court: Court of Appeal, Second District, Division 6, California.
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