Filed 9/9/13 P. v. Jones CA3
                                          NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----



THE PEOPLE,                                                                             C071902

                   Plaintiff and Respondent,                                 (Super. Ct. No. 10F1065)

         v.

JAY MICHAEL JONES,

                   Defendant and Appellant.




         A jury found defendant Jay Michael Jones guilty of six counts of child molestation
and sustained five allegations of substantial sexual conduct; it acquitted him of a seventh
molestation count. The trial court sustained recidivist allegations.

         The trial court sentenced defendant to state prison for 31 years. As is pertinent to
this appeal, it also imposed one fine of $300 under Penal Code section 290.3 (the sex
offender fine), among the assessments on which (totaling $840) was a $90 penalty
assessment under Government Code section 76104.7 (the DNA penalty assessment). It



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then imposed an administrative fee of 15 percent for the collection of the restitution it had
ordered. This was in accordance with the recommendations of the probation report.

       On appeal, defendant contends the trial court should have dismissed the entire jury
panel1 after five prospective jurors walked out of the courtroom during voir dire when the
prosecutor began describing the nature of the crimes. He also asserts his crimes antedate
the 2006 increase in the sex offender fine to $300 and enactment of the DNA penalty
assessment. Finally, he contends the restitution administrative fee is in excess of that
authorized by statute and thus must be reduced to 10 percent. (Pen. Code, § 2085.5.)
The People concede the financial issues; we do not find the court abused its discretion in
failing to dismiss the jury panel. We shall therefore affirm the judgment as modified.

       The facts underlying defendant‟s convictions are immaterial to this appeal. We
therefore omit a summary of them.

                                      DISCUSSION

 I. The Reaction of the Prospective Jurors Did Not Mandate Dismissing the Panel
                       A. The Incident and the Court’s Response
       The parties agreed that before commencing voir dire each would make “mini
opening statements.” Accordingly, the prosecutor began sketching out her case. “[The
victim] is now a young woman. However, when she was a young child she was molested
by her uncle, the defendant . . . . [¶] You will hear that the defendant went and stayed
with [the victim‟s] mother in Cottonwood for a period of time. His bedroom was up in



1 Although the terms are frequently used interchangeably, the Supreme Court has
designated pool as the master list of potential jurors assembled from source lists, venire
as the subgroup of the pool assembled at the courthouse, and panel as the subgroup of the
venire assigned to a courtroom for voir dire in a particular case. (People v. Bell (1989)
49 Cal.3d 502, 520, fn. 3; cf. Code Civ. Proc., § 194 [defining terms “ „[m]aster list,‟ ”
“ „[j]uror pool,‟ ” and “ „[t]rial jury panel‟ ”].)


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the attic, and one evening he asked [the victim] to take a nap with him. During the course
of that evening, he kissed her on the mouth using tongue. He had her masturbate him to
the point of ejaculation. He orally copulated her, and he had sexual intercourse with her.
[¶] About a week later, [the victim] was sleeping in her bedroom. . . . [D]efendant . . .
went into her bedroom, rolled her from her side to her back . . . , digitally penetrated her
vagina and orally copulated her.”

       The prosecutor began to describe the next incident when three female prospective
jurors announced that they had to leave and started to walk out of the courtroom. The
trial court directed them to wait in the hallway. Two more prospective jurors said they
wanted to leave as well.

       At this point, the trial court stated, “Hang on. Sit down, please. Now, I‟m
prepared to go through the process, and if you think you are so emotionally distraught
at hearing this explanation, I‟m not going to force you to stay, but remember what I said:
[¶] The fact that [the prosecutor] is telling you what she thinks may be the evidence in
this case does not mean that these things are true. It remains to be seen whether these
things are true. That‟s why we‟re going to have a trial. [¶] So, if you think the mere
description of these things is so upsetting to you that you cannot sit by and listen, that
these . . . statements alone are . . . so sensitive to you that you cannot listen to this
explanation and give the defense the benefit of listening to [its] explanation, then please
do step out in the hallway.” The two prospective jurors left the courtroom. The
prosecutor completed her statement, describing the third incident as involving intercourse
when the victim was 11 years old. In response, defense counsel simply asserted “I want
to emphasize it is your duty to listen to all the facts of this case before you make up your
mind. The evidence will show that none of these acts occurred and the witnesses will
testify to that. Thank you.” The court then called a recess. It told counsel it intended to




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dismiss the prospective jurors who had left the courtroom. Both counsel agreed this was
cause for dismissal.

       Defense counsel expressed “some concern about whether the rest of the [potential]
jurors have been tainted.” The judge responded that if counsel was “suggesting that I
bring up different jurors, I‟m not prepared to do that, although I am certainly mindful of
the . . . need we may have to ask jurors if they were influenced by that.” The court
dismissed the five jurors. Defense counsel made a request that he “be allowed to renew
the motion at a later time if it becomes plain that we‟re having problems.” The court
responded, “We‟ll know if it‟s going to be significant based on the voir dire, but I
certainly will give you that opportunity.”

       Before resuming voir dire, the court addressed the potential jurors at some length:

       “[W]e could not let this moment pass without at least closing up on what we just
experienced here as [the prosecutor] was making her remarks . . . .

       “ . . . I‟ve been in this a long time. I‟ve never had anything like that happen. . . .
I‟ve never had people get up out of the gallery during these brief statements and leave the
courtroom because they were so upset.

       “So, I think it does make an important point, that these charges, as I explained to
all of you, are the sorts of things that can engender a lot of emotion and reaction by
jurors. I know that.

       “I‟ve tried dozens of child molest[ation] cases. I couldn‟t count the number that
I‟ve tried and I know that people can react that way to the mere mention of these charges.
It‟s . . . inconceivable that we have stuff like this going on and in our minds in the idea
that children can be victims, and, so, hearing charges of this sort and the number that
were read and the allegations that were read, I completely understand, can create . . . an
emotional reaction.


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       “And what we saw there was apparently a storm of reaction among at least five
members of the jury, and there may be more of you out there who did not act on an urge
or an instinct to get up and leave the courtroom because of the remarks I made trying to
impress on you and remind you all that we have a presumption of innocence in our
country, that we don‟t let accusation alone suffice for proof, that we don‟t let charges
stand as evidence . . . . [The prosecutor] hadn‟t even made her complete remarks, and
several people were so overcome with emotion that they could not sit and listen to the
rest of her explanation or give the defense the opportunity to make . . . remarks . . . .

       “So I know there may be some of you out there who are struggling against that
urge . . . , and if you are feeling that way, I understand and we need to know about that.
We certainly don‟t want people on this jury who . . . have so been overcome with
emotion that they cannot give a reasoned, thoughtful, . . . impartial view of the evidence.
We . . . just don‟t want you on the jury for our own interests to say nothing of not
wanting to put you in that position.

       “But it‟s also been my experience over time that people who come to court and are
surprised and shocked at times at the charges that I read to them, once they kind of regain
their equilibrium and they have in mind the presumption of innocence and they realize
that whatever verdict is appropriate at the end of the case, they‟ll be given every
opportunity to enter, they are more able to see the bigger picture and get their feet under
them a little bit and go on with the process, but that‟s not true in every case and I„m
prepared for the fact that it may not be true in your case.

       “Ma‟am, I‟ll get to you in a minute, but I want to make sure everyone understands
that there‟s a requirement that if you serve here, you‟ve got to be able to extend the
presumption of innocence to [defendant], and if you can‟t do that, I need to know that,
because we‟ll have to find others who can.



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       “Is there anyone on the jury now, who just from what you‟ve seen or heard, feels
that you could not extend the presumption of innocence to [defendant] during this trial?
If not, let me see your hand.”

       One juror indicated a pro-defense bias as the result of her brother “who was in a
similar case as this” in which the witness recanted, at a cost to the brother of $40,000.
On further voir dire from the court, she agreed that she could decide the present case on
the evidence without a bias for or against either side. The court then asked the panel for a
show of hands if anyone could not be fair and impartial, or could not apply the
presumption of innocence. No one raised a hand. Defense counsel did not at any later
point renew the issue of dismissing the panel.
                                        B. Analysis
       A ruling on a request to dismiss a panel is reviewed for an abuse of discretion.
(People v. Nguyen (1994) 23 Cal.App.4th 32, 41.) “[D]ischarging the entire [panel] is a
remedy that should be reserved for the most serious occasions of demonstrated bias or
prejudice, where interrogation and removal of the offending [prospective jurors] would
be insufficient protection for the defendant.” (People v. Medina (1990) 51 Cal.3d 870,
889, italics added [remedy not warranted merely because "a few” prospective jurors made
remarks indicating belief in defendant‟s guilt].)

       After relating the above events (with a heavy reliance on melodramatic adverbs),
defendant asserts the walkout of the five prospective jurors was inherently likely to have
influenced the remaining prospective jurors, including the ones eventually seated on the
jury, and therefore his right to a fair and impartial jury was violated. He analogizes to
People v. Nesler (1997) 16 Cal.4th 561, in which seated jurors learned of prejudicial
extrajudicial information about the defendant (an inapposite context), cites decisions
from other jurisdictions finding irremediable taint from comments during voir dire, and
cites other decisions that disparage the effectiveness of admonitions (including a decision


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of the late Justice Jefferson declaring the presumption that jurors heed admonitions in the
context of other crimes evidence is “an exercise in futility and illusory imagery” (People
v. Gibson (1976) 56 Cal.App.3d 119, 130)).

       In the first place, we must review the present trial court‟s ruling in light of the
specific facts in the record before the court, and it is generally unproductive to compare
different cases on a question of fact such as this. (Cf. People v. Rundle (2008) 43 Cal.4th
76, 137-138 [issue of sufficiency of evidence; describing task of comparing cases as having
“little value”]; Robison v. City of Manteca (2000) 78 Cal.App.4th 452, 458, fn. 5 [issue of
undue influence]; State Compensation Ins. Fund v. Brown (1995) 32 Cal.App.4th 188,
202 [issue of status as independent contractor].) We thus eschew the task of digesting
and distinguishing the results in other cases assessing taint in the jury selection process.

       As for defendant‟s suggestion that the trial court‟s efforts were unavailing, the
reliance on admonitory remarks generally is a pragmatic presumption essential to the
system of trial by jury, without which we court judicial anarchy because there would
never be any point in instructing a jury (or reversing for improper instructions). The
presumption is overcome only in extraordinary situations where it would fly in the face
of human nature, such as where an involuntary confession or the inculpatory extrajudicial
statements of a codefendant are involved. (Richardson v. Marsh (1987) 481 U.S. 200,
211 [95 L.Ed.2d 176, 188]; Francis v. Franklin (1985) 471 U.S. 307, 324, fn. 9
[85 L.Ed.2d 344, 359]; Parker v. Randolph (1979) 442 U.S. 62, 74-75 & fn. 7
[60 L.Ed.2d 713, 724-725] (plur. opn. of Rehnquist, J.); People v. Gonzales and Soliz
(2011) 52 Cal.4th 254, 292; People v. Anderson (1987) 43 Cal.3d 1104, 1120-1121.) In
light of this uniform body of controlling authority, we reject defendant‟s urgings to find
the trial court‟s extensive remarks to the panel ineffective.

       The conduct at issue here does not involve any suggestion of defendant‟s guilt.
Rather, it simply expressed the heightened sensitivity of the prospective jurors toward the


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type of charges at issue. The trial court extensively reminded the panel of the obligations
to be impartial until deliberations, and to apply the presumption of innocence, and
investigated whether anyone would be unable to comply with these obligations. The
court and parties thereafter had the opportunity during individual voir dire to investigate
further whether anyone‟s ability to remain impartial was impaired, and defense counsel
never indicated any lingering dissatisfaction with the process. Under these
circumstances, the trial court did not abuse its discretion in declining to dismiss the panel.

                                    II. Financial Issues

       In the information included with the jury‟s instructions, six of the offenses were
alleged to have occurred between November 2001 and November 2002, and one between
November 2003 and November 2004. At the time of defendant‟s offenses, the sex
offender fine was only $200. (Pen. Code, § 290.3, as amended by Stats. 1995, ch. 91,
§ 121, p. 346.) As defendant‟s acts antedate the increase in the fine to $300 in 2006
(Stats. 2006, ch. 337, § 18, p. 2610), the prohibition against applying punitive fines ex
post facto precludes applying the increase to defendant. (People v. Valenzuela (2009)
172 Cal.App.4th 1246, 1248.) We will reduce the fine to $200.

       Similarly, the DNA penalty assessment was also enacted in 2006. (Gov. Code,
§ 76104.7, added by Stats. 2006, ch. 69, § 18, pp. 1251-1252.) We determined this was a
punitive fine that could not be applied ex post facto. (People v. Batman (2008)
159 Cal.App.4th 587, 591.) We must therefore strike the penalty assessment.

       Defendant recalculated the total of the sex offender fine with its associated
assessments as $600 rather than $1,140. The People do not take issue with defendant‟s
math, and we modify the judgment accordingly.

       An administrative fee of 10 percent applies to the collection of restitution from
prisoners. (Pen. Code, § 2085.5, subd. (e).) An administrative fee of 15 percent applies



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only to the collection of restitution from probationers. (Pen. Code, § 1203.1, subd. (l).)
We will modify the judgment to apply the correct percentage.

                                      DISPOSITION

       The judgment is modified to reduce the sex offender fine to $200, strike the DNA
penalty assessment, and reduce the other associated assessments to a total of $400; and to
reduce the administrative fee to 10 percent. As modified, the judgment is affirmed. The
trial court shall prepare an amended abstract of judgment and forward a certified copy to
the Department of Corrections and Rehabilitation.




                                                              BUTZ                   , J.



We concur:



             RAYE                  , P. J.



             HOCH                  , J.




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