Filed 6/20/16 P. v. Smith CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                        H041538
                                                                  (Santa Cruz County
         Plaintiff and Respondent,                                 Super. Ct. No. F21348)

         v.

RANDY JAY SMITH,

         Defendant and Appellant.


         Defendant Randy Jay Smith appeals his conviction in this child molestation case,
for which Smith received an aggregate sentence of 180 years to life in prison. Smith
argues that his conviction must be reversed because the trial court failed to conduct an
appropriate inquiry into juror alleged bias, thereby depriving Smith of his constitutional
right to a fair trial by 12 unbiased jurors.
         For the reasons set forth below, we conclude the trial court did not abuse its
discretion based on the facts presented. We will affirm the judgment.
                                            I.        BACKGROUND
         We limit our background discussion to the factual and procedural information that
pertains to the issue on appeal, which is whether the trial court abused its discretion in its
inquiry into the alleged bias of Juror No. 9. The facts underlying the offenses and the
evidence adduced at trial are for the most part not relevant, though we briefly summarize
the allegations, primary testifying witnesses, and the jury verdict.
       A.       Factual and Procedural History
       The Santa Cruz County District Attorney filed a consolidated information on
August 25, 2014, alleging 14 counts involving five victims over a span of 15 years.
Smith was charged with one count of oral copulation with a child 10 years of age or
younger (Pen. Code, § 288.7, subd. (b); count 1),1 eight counts of forcible lewd conduct
on a child (§ 288, subd. (b)(1); counts 2-6 & 11-13), four counts of lewd conduct on a
child (§ 288, subd. (a); counts 7-10), and aggravated sexual assault of a child (§ 269,
subd. (a); count 14). The information also alleged a multiple victim special circumstance
(§ 667.61, subd. (b)). The prosecution witnesses included the five charged victims, two
of whom were minors at the time of trial, as well as family members of the victims, and
Katrina Rogers, the district attorney’s investigator in the case, as well as another officer.
Inspector Rogers testified briefly only to establish Smith’s age through his DMV records.
       The jury found Smith guilty as charged and found the multiple victim special
circumstance to be true. Smith was sentenced to an aggregate term of 180 years to life in
prison, consisting of consecutive 15-year terms on all 14 counts. The terms for counts 2
and 13 were stayed pursuant to section 654. Smith was awarded credit for time served
and was ordered to pay $980 in court fees, a $10,000 restitution fine (§ 1202.4), a stayed
$10,000 fine (§ 1202.45), and $6,690.34 to the Victim Compensation Board while a
further $7,000 in victim restitution remained under the court’s consideration.
       B.       Juror No. 9 Voir Dire
       Juror No. 9 was called to the jury box on the second day of jury selection. The
trial court asked Juror No. 9’s group if the prospective jurors recognized the names of any
of the witnesses or attorneys. Katrina Rogers was listed among the names published to
the jury. The jurors at that time, including Juror No. 9, did not answer affirmatively.


       1
           Further unspecified statutory references are to the Penal Code.

                                               2
       In response to a question about connections to law enforcement, Juror No. 9
disclosed, “I have close contact with law enforcement personnel all the time in my job.
Professional level. Don’t socialize.” Juror No. 9 had been employed for 25 years as an
emergency equipment technician at a local hospital. The trial court followed up, “And
can you treat all witnesses the same? If you have law enforcement officers treating them,
judging their credibility by the same standard?” Juror No. 9 replied, “Have to.” Juror
No. 9 also stated in reply to general voir dire that she could “[k]eep an open mind and
hear both sides of the story.”
       During questioning by defense counsel, Juror No. 9 stated that the defense and
prosecution were starting on equal footing and she could be “[o]pen and honest and wait
for the evidence to be produced and weigh things at that point.” Juror No. 9 opined that
she would not switch her vote just to be with the majority because that “would undermine
my integrity.” She stated that she could “[d]efinitely” deliberate. She acknowledged that
memory is subject to change. And she said she would hold the prosecution to its burden
of proof and would have no problem not convicting if the government failed to meet its
burden.
       C.     Juror No. 9 Alleged Juror Bias
       The prosecutor disclosed to the trial court on the opening day of trial that Inspector
Rogers recognized Juror No. 9 from interviews conducted in an unrelated murder case,
which had been tried earlier that year. Inspector Rogers believed she had contact with
Juror No. 9 because she remembered her face. Juror No. 9 had been interviewed
“multiple times” by another investigator working with Inspector Rogers on that case. She
was listed as a witness but was not called at trial. The prosecutor informed the court that
he would try to find out more information about Juror No. 9’s involvement and would
report to the court and defense counsel. The court directed the prosecutor to follow up
and report if there were “any issues,” noting that although Inspector Rogers was listed as
a witness, it was possible that Juror No. 9 had not met her, the “contact was vague,” or
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she did not remember the name. The court also asked defense counsel to bring any issue
to its attention, telling both sides: “If and when you want me to take any action, let me
know on that issue.”
          Defense counsel asked the trial court to revisit the subject of Juror No. 9 on the
third day of trial. Defense counsel reported her understanding that Juror No. 9 was
interviewed in the murder case “multiple times by Katrina Rogers. And she’s been—she
was—just right now I was outside waiting for the doors to get unlocked. When I walked
up, she was sitting down next to a police officer in the hallway, chatting like they were
old buddies.” Defense counsel suggested that Juror No. 9 had not disclosed her contact
with law enforcement because counsel would “have questioned her about that, if she had.
And the fact that she was possibly a witness, a prosecution witness in a case very
recently. So I just think there was some things that she may not have disclosed to us. . . .
[I]f the Defense would have known we would not—we would not have accepted her as a
juror.”
          Defense counsel was also concerned that Juror No. 9 was not focused on the
witnesses and instead was “staring directly at the defense table with daggers, so to speak,
in her eyes.” Defense counsel stated that “a variety of sources in the courtroom”
including “court staff” had noticed Juror No. 9 for this reason.
          The prosecutor responded that the district attorney’s office had continued to search
for information but had not found anything further. He confirmed that Inspector Rogers
had no reports of personal interactions with Juror No. 9 but was “adamant” that there was
some personal contact because she recognized her face. The prosecutor said it was
possible that Inspector Rogers may have been involved in some part of interviewing Juror
No. 9, then directed the other investigator to do the follow-up interviews.
          The trial court stated that it saw no reason to act and asked defense counsel what it
wanted the court to do. Defense counsel asked the court to excuse Juror No. 9. The court
denied the request: “There’s no basis for that. She hasn’t done anything inappropriate.”
                                                4
The court explained that it had been watching Juror No. 9 since the issue was brought to
the court’s attention and “I’m not seeing any expressions of hostility.” The court had
observed Juror No. 9 looking “sometimes” at the witnesses or in the room as opposed to
looking directly at Smith. The court reasoned: “So there may have been some contact
with Ms. Rogers. The people are still trying to follow-up on that. She was asked if she
knew any of the people on the list. Whether or not she would have known Ms. Rogers by
name or remember the name—the homicide occurred several years ago. . . . There’s no
reason to believe . . . the juror lied about anything at this point. But I do want to speak to
Ms. Rogers . . . and find out what she remembers of (Juror No. 9).”
       The trial court questioned Inspector Rogers about her “recollection of having some
interaction with” Juror No. 9. Inspector Rogers explained that she had been the lead
investigator on the murder case. Her recollection was “that I was doing a neighborhood
canvass for witnesses, and I ha[d] a very small interaction with [Juror No. 9] at her
apartment door.” Inspector Rogers assigned another investigator to do the follow-up,
which resulted in three audio recorded interviews with Juror No. 9. Inspector Rogers
confirmed that Juror No. 9 was never called as a witness during the trial.
       Defense counsel declined the trial court’s invitation to ask any questions of
Inspector Rogers. The court concluded: “The Court at this point will take no additional
action. Keep me appri[s]ed of any other issue you may have with that individual.”
Defense counsel did not raise the subject of Juror No. 9 during the remainder of the trial.
                                    II.     DISCUSSION
       Implicit in the constitutional right to a trial by jury is the ability of the jurors to
remain unprejudiced and unbiased. (People v. Taylor (1992) 5 Cal.App.4th 1299, 1312.)
Upon a showing of good cause that a juror is unable to perform his or her duty, the trial
court may discharge the juror at any time, including during deliberations. (§ 1089;
People v. Lomax (2010) 49 Cal.4th 530, 588 (Lomax).) “When a court is informed of
allegations which, if proven true, would constitute good cause for a juror’s removal, a
                                                5
hearing is required.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1051 (Barnwell);
Lomax, supra, at p. 588.) “If the trial court has good cause to doubt a juror’s ability to
perform his duties, the court’s failure to conduct a hearing may constitute an abuse of
discretion on review.” (Lomax, supra, at p. 588.) Similarly, the manner in which the trial
court conducts an inquiry into juror alleged disqualification is subject to review for abuse
of discretion. (People v. Fuiava (2012) 53 Cal.4th 622, 702 (Fuiava).) Ultimately, a
juror’s disqualification for bias, that is, the juror’s inability to perform his or her duties as
a juror, must appear on the record to a “demonstrable reality.” (Barnwell, supra, at
p. 1052; Fuiava, supra, at pp. 702, 711.)
       Smith contends the trial court abused its discretion when it failed to investigate the
evidence raising a strong inference that Juror No. 9 was biased in favor of law
enforcement and the prosecution. Smith argues that the prosecution’s revelations about
Juror No. 9, her reported conduct during trial, and her failure to disclose personal contact
with the district attorney’s office as a witness in a murder case, together constituted
“sufficient evidence of possible disabling bias” that required further investigation. To
resolve the inference of bias, Smith argues the trial court only needed to briefly interview
Juror No. 9 outside the presence of the other jurors.
       As a preliminary matter, the People assert that Smith forfeited his claim by failing
to ask for an additional inquiry at the time of trial. We do not find the issue forfeited on
appeal. “The duty to conduct an investigation when the court possesses information that
might constitute good cause to remove a juror rests with the trial court whether or not the
defense requests an inquiry, and indeed exists even if the defendant objects to such an
inquiry.” (People v. Cowan (2010) 50 Cal.4th 401, 506 (Cowan).) As the court
explained in Cowan, the trial court’s duty is to conduct “ ‘an inquiry sufficient to
determine the facts . . . whenever the court is put on notice that good cause to discharge a
juror may exist.’ ” (Ibid., quoting People v. Burgener (1986) 41 Cal.3d 505, 519,
disapproved on another ground by People v. Reyes (1998) 19 Cal.4th 743, 755-756.)
                                                6
       Thus, the failure to investigate possible juror intoxication during deliberations was
error in People v. Burgener, supra, 41 Cal.3d at pages 520 through 521, even though
defense counsel had declined the trial court’s suggestion to speak to the accused juror or
to substitute an alternate. (Id. at p. 517.) Similarly in People v. Ray (1996) 13 Cal.4th
313, 343, the court reviewed on the merits whether the trial court erred in failing to
investigate a juror’s association with the victim’s daughter, even though defense counsel
had told the trial court it saw “no ‘reason to inquire.’ ” In Cowan, the court considered if
the trial court should have inquired into a juror’s statement that another juror may have
been speaking with the defendant’s family members during the penalty phase of a murder
trial (Cowan, supra, 50 Cal.4th at p. 507) and expressly rejected the argument that the
defendant had forfeited his juror alleged bias claim. (Id. at pp. 505-506.)
       In our case, Smith’s counsel not only told the court she was concerned that Juror
No. 9 had failed to disclose a close connection with law enforcement and appeared to
display a negative demeanor toward the accused during the trial, but counsel requested
Juror No. 9’s dismissal. This was sufficient to preserve the claim that the trial court
should have conducted a further inquiry by speaking directly with Juror No. 9, even if
Smith’s counsel did not make that specific request. Moreover, the trial court had an
independent duty to conduct a sufficient investigation regardless of Smith’s counsel’s
position on the information concerning Juror No. 9’s potential bias. (Cowan, supra, 50
Cal.4th at p. 506.) We turn to the question of whether the information possessed by the
trial court required further inquiry into Juror No. 9’s ability to serve.
       The California Supreme Court has summarized the inquiry required upon a
showing of good cause under section 1089: “ ‘[W]hen a court is put “on notice that
improper or external influences were being brought to bear on a juror . . . ‘it is the court’s
duty to make whatever inquiry is reasonably necessary to determine if the juror should be
discharged and whether the impartiality of the other jurors has been affected.’ ” ’ ”
(Fuiava, supra, 53 Cal.4th at p. 702.) But “ ‘not every incident involving a juror’s
                                               7
conduct requires or warrants further investigation.’ ” (Ibid.) Like the ultimate decision
to retain or discharge a juror, whether and to what extent to investigate juror alleged bias
or misconduct is a discretionary determination by the trial court. (Ibid.; People v.
Martinez (2010) 47 Cal.4th 911, 942-943 (Martinez).)
       The starting point of the reviewing court’s inquiry is not whether “there is
uncertainty in the record concerning what occurred because the trial court did not conduct
an inquiry,” but “whether the information the trial court was aware of when it made its
decision warranted further inquiry.” (Fuiava, supra, 53 Cal.4th at p. 703.) “ ‘ “ ‘The
court does not abuse its discretion simply because it fails to investigate any and all new
information obtained about a juror during trial.’ ” ’ ” (Id. at p. 702, quoting People v.
Bradford (1997) 15 Cal.4th 1229, 1348.)
       We apply these principles to the facts before the trial court concerning Juror No. 9.
When questioned during jury selection about her connections to law enforcement, Juror
No. 9 stated that she had extensive contact professionally. Neither counsel nor the trial
court asked Juror No. 9 whether she had ever been a witness or involved in a criminal
prosecution. Smith contends that Juror No. 9 revealed potential bias by failing to disclose
her witness role, because being interviewed by investigators in relation to a murder case
is a connection to law enforcement. Taken together with Juror No. 9’s reportedly
animated chat with a police officer in the hallway and hostile expression toward the
defendant, Smith urges the trial court was required to at least ask Juror No. 9 about the
facts underlying the inference of bias.
       Several factors lead us to conclude that although it might have been prudent for
the trial court to briefly question Juror No. 9 about her contact with investigators in the
murder case and her ability to remain impartial, the trial court’s determination not to do
so did not amount to an abuse of discretion. Juror No. 9 responded to several questions
during voir dire that were directed at possible bias in favor of law enforcement. Her
responses indicated that she “had to” treat all witnesses, including law enforcement, by
                                              8
the same standards, that the defense and the prosecution started on equal footing, and that
she would weigh the evidence and hold the prosecution to its burden of proof. Because
Juror No. 9 was never asked whether she had been a witness or potential witness in a
case, we find no evidence of concealment. To the extent that Juror No. 9 may have
inadvertently failed to disclose her connection to an unrelated criminal case, “ ‘ “[t]he
proper test to be applied to unintentional ‘concealment’ is whether the juror is sufficiently
biased to constitute good cause” ’ ” for discharge under section 1089. (People v. San
Nicolas (2004) 34 Cal.4th 614, 644; People v. Wilson (2008) 44 Cal.4th 758, 823.)
       We observe nothing in the record to conclude that Juror No. 9 harbored bias
sufficient to constitute good cause under section 1089. Juror No. 9’s responses to the
voir dire questions were unequivocal and did not suggest an underlying bias. When the
trial court examined Inspector Rogers about Juror No. 9, Inspector Rogers recalled a
fleeting face-to-face encounter with Juror No. 9, who was then referred to talk to another
investigator. Inspector Rogers found three recorded interviews by that investigator with
Juror No. 9, and the prosecutor told the trial court that he was forwarding those reports to
defense counsel. Smith’s counsel declined the trial court’s invitation to question
Inspector Rogers and did not raise the issue with the trial court again, suggesting the
reports from the interviews with Juror No. 9 did not trigger additional concerns.
       Nor does it appear from the record that Juror No. 9’s reported demeanor during
witness testimony and friendly conversation with a police officer in the hallway—even
viewed alongside her role as an interviewed witness in the murder case—mandated
further investigation. The observation that Juror No. 9 was chatting with a police officer
“like they were old buddies” did not suggest—and the record does not otherwise reveal—
if the police officer with whom Juror No. 9 was engaged was a witness. While a juror’s
unauthorized contact with a witness is improper, such contact may be nonprejudicial if it
was “ ‘de minimis’ ” or was unrelated to the trial. (Cowan, supra, 50 Cal.4th at p. 507.)
There is no showing here that the hallway conversation was related to the trial or was
                                              9
more than de minimus chatter, especially in light of Juror No. 9’s plain statement during
voir dire that she had “close contact with law enforcement personnel all the time” through
her work.
       Smith’s counsel asserted that Juror No. 9 had “daggers . . . in her eyes” when
looking toward the defendant. However, the trial court noted nothing inappropriate in
Juror No. 9’s expression, even though the court had been watching her.2 We defer to the
trial court’s observations of Juror No. 9’s demeanor because the court had the opportunity
to observe the juror for several days. (See Lomax, supra, 49 Cal.4th at p. 567 [trial judge
is best situated to observe prospective juror’s demeanor and evaluate competence];
Barnwell, supra, 41 Cal.4th at p. 1053 [reviewing court defers to the trial court’s factual
determinations, based on firsthand observations, in investigating juror bias or
misconduct].)
       We find the sum of “information the trial court was aware of when it made its
decision” did not require further inquiry, given the trial court’s examination of Inspector
Rogers and clear directive to counsel to inform the court of further concerns. (Fuiava,
supra, 53 Cal.4th at p. 703.) The trial court’s response was comparable to that of the trial
court in Fuiava, a death penalty appeal in which the California Supreme Court found no
abuse of discretion by the trial court “taking a ‘wait and see’ approach” to assess if jurors
had seen or been affected by spectator conduct during the guilt phase of the trial. (Id. at
p. 702.) The trial court in Fuiava discharged a juror after she reported severe stress due
to her observation of two spectators in the courtroom, who the juror believed were
supporting the defense and were speaking and pointing at several of the jurors. (Id. at


       2
         Smith asserts in his appellate brief that the inference of bias was sufficient to
cause the trial court to “keep an eye” on Juror No. 9. This fact is unremarkable given that
the prosecution had brought the issue of Juror No. 9’s prior contact with Inspector Rogers
to the court’s attention only two days before, and the court had asked the parties to keep it
apprised of any concerns or new information.

                                             10
p. 701.) The juror also reported that several of the jurors had talked about the spectators.
(Ibid.) On appeal, the defense argued that after discharging the impacted juror, the trial
court should have investigated whether other jurors might have been prejudiced by the
spectators’ alleged conduct. (Id. at p. 702.) The high court disagreed, noting that the
facts before the trial court at the time did not indicate the other jurors had been affected.
(Id. at pp. 702-703.) It was these facts—not the uncertainty in the record resulting from
the lack of an inquiry—against which the trial court’s decision had to be evaluated. (Id.
at p. 703.)
       Similarly in Martinez, the California Supreme Court concluded the trial court did
not abuse its discretion when it refused the defendant’s request to conduct a further
inquiry into the ability and fitness of a juror to serve, even though the juror was employed
at juvenile hall, had admitted general knowledge of the defendant’s juvenile delinquency
record, and had brief contact with the prosecution’s investigator who had called juvenile
hall looking for the defendant’s disciplinary reports before the start of trial. (Martinez,
supra, 47 Cal.4th at pp. 942-943.) In that juror’s conversation with the investigator
(which occurred during the interval between the juror’s swearing-in and the start of trial),
the juror made a joking remark to the investigator about getting off the jury. (Id. at
p. 940.) On appeal, the defendant argued that a hearing to evaluate the juror’s ability to
remain impartial was required under the circumstances. (Id. at p. 942.) The Supreme
Court explained, however, that the inadvertent contact between the juror and the
investigator did not give the juror additional information about the case or, by itself,
constitute “good cause” casting doubt on her ability to serve, and the other issues
concerning the juror’s ability to remain impartial had already been addressed during voir
dire. (Id. at pp. 942-943.) Citing the “demonstrable reality” standard, the court further
explained that the defendant’s claim that the trial court was “ ‘duty bound’ ” to conduct
an inquiry “lack[ed] merit,” because the defendant “fail[ed] to present evidence of actual
bias on the part of the juror.” (Id. at p. 943.)
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       Here, the trial court’s inquiry and brief examination of Inspector Rogers proved
“ ‘sufficient to determine the facts’ ” that gave rise to the bias allegation (Cowan, supra,
50 Cal.4th at p. 506), satisfying the requirement that the trial court “ ‘ “ ‘make whatever
inquiry is reasonably necessary to determine if the juror should be discharged . . . .’ ” ’ ”
(Fuiava, supra, 53 Cal.4th at p. 702.) Smith points to People v. Collins (1976) 17 Cal.3d
687 as an example of an appropriately extensive inquiry into a juror’s ability to serve.
But that case is distinguishable on the facts, as the juror had informed the trial court after
deliberations began that she “could not decide the case on the evidence and the law since
she was involved emotionally more than intellectually.” (Id. at p. 696.) The facts in this
record more closely resemble those in Fuiava and Martinez, and do not suggest bias on
the part of Juror No. 9 sufficient to form good cause to doubt her ability to perform her
juror duties. The law does not require the trial court to “conduct an inquiry whenever it
becomes aware of any indication of a possibility that there might be good cause to
remove a juror.” (Fuiava, supra, at p. 703.)
       Having concluded that the trial court did not abuse its discretion by ending its
inquiry into Juror No. 9 short of questioning the juror, Smith’s contention that the trial
court’s decision constituted reversible error also fails. Recent California Supreme Court
decisions stress that juror disqualifying bias must appear on the record as a
“demonstrable reality.” (Barnwell, supra, 41 Cal.4th at p. 1052.) “ ‘ “Before an
appellate court will find error in failing to excuse a seated juror, the juror’s inability to
perform a juror’s functions must be shown by the record to be a ‘demonstrable reality.’
The court will not presume bias, and will uphold the trial court’s exercise of discretion on
whether a seated juror should be discharged for good cause under section 1089 if
supported by substantial evidence.” ’ ” (Martinez, supra, 47 Cal.4th at p. 943; see also
Fuiava, supra, 53 Cal.4th at pp. 703, 711.) Because the evidence in the record did not
amount to an inference of bias sufficient to require further inquiry by the trial court,
Smith cannot establish disqualifying bias to a “demonstrable reality.”
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                            III.   DISPOSITION
The judgment is affirmed.




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                    Premo, J.




WE CONCUR:




    Rushing, P.J.




    Grover, J.
