Filed 7/31/18




                     CERTIFIED FOR PARTIAL PUBLICATION*

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                         F072914
        Plaintiff and Respondent,
                                                              (Super. Ct. No. F14911174)
                v.

RUSSELL DUSTY FLEMING,                                                 OPINION
        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Fresno County. Arlan L.
Harrell, Judge.

        Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant
and Appellant.
        Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Kelly E.
LeBel, and Jamie Scheideggar, Deputy Attorneys General, for Plaintiff and Respondent.
                                             -ooOoo-




        *Pursuant  to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II and III.
                                    INTRODUCTION
       When an invited guest, knowing his friend is asleep in the living room, gets into a
bed where his friend’s wife is asleep and digitally penetrates her vagina without her
knowing consent but without her initial objection or resistance, has he committed sexual
penetration by artifice, pretense, or concealment in violation of Penal Code section 289,
subdivision (f)? After a jury trial, the jury concluded the answer is “yes” and convicted
defendant Russell Dusty Fleming of one count of sexual penetration by fraud (Pen. Code,
§ 289, subd. (f); unless otherwise specified, all statutory references are to the Pen. Code.)
On December 15, 2015, the trial court sentenced defendant to the mitigated term of three
years in prison.
       Defendant contends on appeal he did not violate section 289, subdivision (f)
because there was no substantial evidence his conduct included actions qualifying as
pretense, artifice, or concealment. Defendant argues CALCRIM No. 1051, the pattern
jury instruction setting forth the elements of the offense, failed to set forth the element
that the jury must find a causal link between defendant’s actions and the victim’s belief.
Defendant contends the court prejudiced him by removing a juror based on a finding of
bias by the juror unsupported by the evidence. In the published portion of this opinion,
we reject the first contention, and in the unpublished portion, we reject the latter
contentions and affirm the judgment.
                                           FACTS
Prosecution Case
       The evening of December 12, 2014, defendant went out with friends for dinner
and dancing to celebrate Taryn W.’s birthday. The party included Cheyenne, Blake and
his wife D.P., and neighbors Megan and Mitchell. Cheyenne left after dinner because she
was not old enough to drink alcohol. D.P. said they all drank enough that evening that
they should not be driving, and she herself was intoxicated. But D.P. was not suffering
from a hangover the next morning and had last consumed alcohol eight hours earlier.

                                              2.
       About 12:30 a.m., the group took a taxi back to the home of Blake and D.P.
Taryn W. went to sleep in Cheyenne’s bedroom. Defendant was carried into an
unoccupied bedroom by Megan and Mitchell, who shut the door. Megan and Mitchell
left and went home. Blake, D.P., and Cheyenne watched a movie in the family room.
All three fell asleep on the couch.
       About 7:00 a.m. the next morning, defendant entered the family room to retrieve
his cell phone from underneath the sofa and called his employer to say he was not coming
to work. D.P. was awakened by defendant, got up from the sofa, and went into her
bedroom and shut the door. D.P. changed into a tank top and pajamas before climbing
into bed around 7:30 a.m. She was alone in her room. D.P. slept facing the wall and
bedroom closet.
       Sometime before 9:15 a.m., defendant went into D.P.’s room without her noticing.
D.P. was sleeping. Defendant climbed into Blake’s side of the bed and lay down behind
D.P. underneath the covers. D.P. felt a body against her and thought it was her husband.
D.P. could not see the person behind her. Defendant did not say anything. Defendant
groped D.P., putting his fingers inside her vagina. D.P. thought her husband was with her
in bed and “started getting into it.”
       D.P.’s cell phone rang. D.P. explained: “So I woke up to—because my phone
rang and I realized that somebody was in bed with me and he was touching me, and I
thought it was my husband Blake.” As D.P. turned over and reached across Blake’s side
of the bed to retrieve her phone from the dresser, defendant pulled the covers over his
head. D.P. pulled the covers back and saw defendant. She screamed. D.P. was shocked
and deeply disturbed. Defendant had been friends with her husband for a long time and
was in their wedding.
       Defendant and D.P. never had a sexual relationship. D.P. did not consent to
defendant’s conduct. D.P. did not give defendant permission to touch her and felt
violated. D.P. ran out to the living room and woke her husband. Blake confronted

                                            3.
defendant in the master bedroom, ordering defendant to get out of his bed. Defendant
pretended he did not know what was happening. Defendant was not wearing a shirt and
his belt was on the floor. Blake told defendant to leave.
       D.P. was very upset and cried. Blake could not comfort her. D.P. did not sleep in
her bed for a month; she reported the incident to the police on Monday, two days after the
incident.
       Cheyenne testified she helped put Taryn to bed in Cheyenne’s bedroom. She
remembered defendant coming to the couch in the living room on Saturday morning to
get his cell phone. Defendant said he had to call work. Cheyenne got up about 15
minutes later to go to her bedroom. When she looked in the room, she saw defendant
lying next to Taryn, who was asleep. Defendant was wearing jeans with no shirt. When
defendant saw Cheyenne, he patted the bed and said there was room for three. Cheyenne
refused and ordered him out. Defendant finally got out of the bed and Cheyenne crawled
into it. Defendant stayed in the bedroom, walking around for a little while.
       Defendant briefly left, but after a few minutes he crawled back into the bedroom
on his hands and knees. Defendant looked up at Taryn from the floor and said, ‘“You
look beautiful when you’re sleeping.’” Cheyenne again told defendant to get out. Before
leaving the room, defendant said, “‘You are evicting me from your room?’” Sometime
after defendant left the bedroom the second time, Cheyenne heard D.P. yelling and
hysterical. D.P. was accusing defendant of touching her. Defendant also became
hysterical and said nothing had happened.
Defense
       Deputy Rudolfo Tafoya of the Fresno County Sheriff’s Department prepared a
report from D.P.’s description of the incident on December 15, 2014. D.P. reported the
crime as a rape. On direct examination D.P. testified she had asked, “Blake, what are you
doing?” after the incident. D.P. told Deputy Tafoya she had said, “[Defendant], what are
you doing here?” When D.P. met with the investigator at the district attorney’s office on

                                            4.
February 24, 2015, she made no reference to asking, “Blake, what are you doing?” Since
D.P. had already washed her night clothes and the bed sheets before the officer came to
her home, there was no physical evidence for him to collect.
                                      DISCUSSION
I.     Evidence of Artifice, Pretense, or Concealment
Introduction
       Defendant contends his conviction must be reversed because there was no
evidence he committed pretense, artifice, or concealment when he touched D.P., an
element of section 289, subdivision (f). Section 289, subdivision (f) has the following
elements: (1) the defendant committed an act of sexual penetration with another person;
(2) the penetration was accomplished using a foreign object; (3) the other person
submitted to the act because she believed the person committing the act was someone she
knew other than the defendant; and (4) the defendant tricked, lied, used an artifice or
pretense, or concealed information, intending to make the other person believe that he
was someone she knew, while intending to hide his own identity. (§ 289, subd. (f);
CALCRIM No. 1051.)
       An earlier version of the statute and the jury instruction included the element that
at the time of the sexual penetration, the alleged victim submitted to the act under the
belief the defendant was the victim’s spouse. Beginning on September 9, 2013, section
289, subdivision (f) was amended to eliminate this element. (Stats. 2013, ch. 282, § 2,
eff. Sept. 9, 2013.) The act in question here occurred more than a year later in December
2014, but the trial court included in the jury instructions the element that the defendant
not be the spouse of the victim.
       Defendant asserts the only prior opinion on point, People v. Leal (2009) 180
Cal.App.4th 782 (Leal), is inapposite because it involved a different factual scenario and
misinterpreted subdivision (f) of section 289. We reject defendant’s argument.



                                             5.
Substantial Evidence
       When a defendant challenges the sufficiency of the evidence, appellate courts
must review the entire record in the light most favorable to the judgment to determine
whether it discloses substantial evidence—evidence which is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. This standard of appellate review is the same in cases in which the
People primarily rely on circumstantial evidence. Although a jury must acquit if it finds
the evidence susceptible of a reasonable interpretation favoring innocence, it is the jury
and not the reviewing court that weighs the evidence, resolves conflicting inferences, and
determines whether the People have met the burden of establishing guilt beyond a
reasonable doubt. If the trier of fact’s findings are reasonably justified under the
circumstances, the opinion of the reviewing court that the circumstances may also be
reconciled with a contrary finding does not warrant reversal of the judgment. (People v.
Casares (2016) 62 Cal.4th 808, 823–824.) After reviewing the evidence in the light most
favorable to the prosecution, we determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. (People v. Rangel
(2016) 62 Cal.4th 1192, 1212–1213.)
       Unless the testimony of a single witness is physically impossible or inherently
improbable, it is sufficient for a conviction. (Evid. Code, § 411; People v. Young (2005)
34 Cal.4th 1149, 1181.) An appellate court must accept the logical inferences the jury
might have drawn from circumstantial evidence. (People v. Maury (2003) 30 Cal.4th
342, 396.) Before setting aside the judgment of the trial court for insufficiency of the
evidence, it must clearly appear that there was no hypothesis whatever upon which there
was substantial evidence to support the verdict. (People v. Conners (2008) 168
Cal.App.4th 443, 453; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)




                                             6.
Analysis
       In Leal, husband A. and wife T.C. celebrated her birthday in their duplex. Over
the course of the evening, both drank large amounts of alcohol and became highly
intoxicated. T.C. changed into her pajamas about 1:00 a.m. and went to sleep in their
bedroom. She was joined by A. a few minutes later in their queen-sized bed. During that
night, T.C. felt her vagina being penetrated by a penis as she was lifted up and placed on
the edge of the bed. (Leal, supra, 180 Cal.App.4th at p. 785.) Although T.C. believed
she was having sex with her husband, they had not had sex in that manner before, and in
fact it was the defendant, who was a stranger and had entered the duplex through a
window. (Leal, at pp. 785–786.)
       T.C. did not feel hair on the back of the stranger, though A. had hair on his back,
and she felt facial hair on the stranger, though A. had no facial hair. A. also usually woke
her up and asked her if she wanted sex. Because T.C. was so intoxicated, she was unable
to fully process the significance of these differences. When the encounter was over, T.C.
lay back on her pillow and saw what appeared to be the silhouette of someone leaving the
room. She reached across the bed and found A. lying there. T.C. said she thought
someone was there, but A. did not respond. T.C. was taken to a hospital and examined
and a rape kit was prepared. Three years later the DNA profile made from the kit
matched defendant’s DNA. (Leal, supra, 180 Cal.App.4th at p. 786.)
       Leal was convicted of rape and sexual penetration by artifice, pretense, or
concealment (§§ 261, subd. (a)(5), 289, subd. (f)), as well as assault with intent to
commit rape (§ 220, subd. (a)). (Leal, supra, 180 Cal.App.4th at p. 785.)
       Leal noted California was one of only a handful of states with current laws
defining rape to include acts of sexual intercourse in which the victim’s apparent consent
is induced by the belief the person performing the act is her spouse. (Leal, supra, 180
Cal.App.4th at p. 788.) As already noted, the element of personating a spouse is no
longer an element of section 289, subdivision (f). False personation of someone else to

                                             7.
induce a person into a sexual act, however, is still an element of the offense, so cases
discussing personating a spouse remain relevant analogies.
       The court in Leal noted the only published case in California involving false
personation of a spouse was a 1922 appellate court decision where the defendant obtained
consent to intercourse after a feigned marriage. (Leal, supra, 180 Cal.App.4th at p. 788,
citing People v. McCoy (1922) 58 Cal.App. 534.) Leal turned to a case from North
Carolina and one from Arizona. North Carolina had a statute “‘prohibiting carnal
knowledge of a married woman by fraud in personating her husband.’” (Leal, supra, at
p. 788, citing State v. Williams (1901) 128 N.C. 573 [37 S.E. 952, 953] (Williams).)
       The wife in Williams was visiting her ill mother but was expecting her husband to
join her that evening. During the night, the defendant lay down next to the sleeping wife,
squeezed her hand, and pulled her towards him. When the wife asked who was there, the
defendant said nothing initially. Thinking it was her husband, the wife asked when he
had arrived. In a whisper, the defendant replied he arrived a little while ago. His voice
was so low the wife did not suspect the defendant was not her husband and sexual
intercourse followed. The court in Williams found sufficient evidence to sustain the
defendant’s conviction, reasoning the defendant knew he was not the woman’s husband
and he also knew the wife thought the defendant was her husband. The Williams court
reasoned the defendant acted to “keep up the delusion until he accomplished his
purpose.” Williams found that even if the defendant lay down on the pallet by mistake,
once he found the woman there and pulled her hand to solicit her to consent to
intercourse, the defendant knew he was obtaining intercourse by fraud in personating the
wife’s husband. (Williams, supra, 128 N.C. at p. 575 [37 S.E. at p. 953]; see Leal, supra,
180 Cal.App.4th at p. 788.)
       Arizona had a statute similar to the North Carolina statute. In State v. Navarro
(1961) 90 Ariz. 185 [367 P.2d 227] (Navarro), the victim went to sleep in the bedroom
she shared with her husband while he and four other men, including the defendant, drank

                                             8.
beer and watched television in another room. The victim remembered waking up in the
middle of the night with defendant on top of her trying to have sexual intercourse.
Believing the defendant to be her husband, the wife submitted to him. In a matter of
seconds she became aware he was not her husband and cried out asking who he was. The
defendant covered her mouth with his hand and told her not to scream. When she cried
and resisted, the defendant escaped from the house, leaving clothes behind. (Navarro,
supra, at p. 187 [367 P.2d at p. 228]; Leal, supra, 180 Cal.App.4th at p. 789.) The
Navarro court found the victim’s testimony was sufficient to establish both corpus delicti
and conviction. (Navarro, supra, at p. 189 [367 P.2d at p. 230]; Leal, supra, at p. 789.)
       The Leal court used the following definitions for artifice, pretense, and
concealment:

       “Artifice is defined as ‘[a] clever plan or idea, [especially] one intended to
       deceive.’ (Black’s Law Dict. (8th ed. 2004) p. 120, col. 2.) Pretense in this
       context is commonly understood to connote an act of pretending (Roget’s
       II: The New Thesaurus (3d ed. 1995) p. 763), while concealment can refer
       to either an ‘act of refraining from disclosure’ or hiding to prevent
       discovery (Black’s Law Dict., supra, at p. 306, col. 2).” (Leal, supra, 180
       Cal.App.4th at p. 789.)
       The court in Leal found the jury could reasonably infer the defendant employed
deceptive methods when he quietly entered T.C.’s dark bedroom in the middle of the
night, began to masturbate her as she was sleeping next to her husband, and engaged in
sexual intercourse with her. Leal reasoned the jury could also reasonably conclude a
woman in T.C.’s situation would reasonably believe these acts were being committed by
her husband. (Leal, supra, 180 Cal.App.4th at p. 789.) Leal concluded that viewed in the
light most favorable to the judgment, the evidence supported the jury’s finding the
defendant intended to induce T.C. to believe he was her husband, and for that reason she
submitted to his sexual advances. (Leal, supra, at p. 790.)
       Defendant argues the facts of Leal are distinguishable from the instant action. He
further argues the holding in Leal improperly relies on the concept of passive


                                             9.
concealment as used in civil tort law. Defendant contends section 289, subdivision (f)
requires more than quiet passivity, but affirmative action by a defendant actively
practicing actual artifice, pretense, or concealment. We disagree with defendant’s
constricted interpretation of these terms. Instead, we agree with the Leal court that,
depending on the circumstances, passive concealment is fraud by misrepresentation
where there is a duty to disclose. (Leal, supra, 180 Cal.App.4th at p. 790.) In any event,
as we explain in greater detail, defendant’s conduct was not passive concealment but a
deliberately considered plan involving active concealment of his identity from D.P.
       We also disagree with defendant’s assertion the facts of this case are substantially
different from those in Leal. D.P.’s husband was asleep on a couch and not in the
bedroom he usually shared with D.P. As in Leal, defendant quietly entered that bedroom
and stealthily entered the bed without waking D.P. while D.P. slept facing the wall away
from him. Concealing his identity by not waking D.P. or making his presence known, he
began to digitally penetrate D.P. while remaining behind her, outside of D.P.’s sight and
while she was still asleep. These facts are nearly identical to those in Leal. As with the
husband in Leal, Blake was soundly sleeping after an evening of heavy drinking.
Defendant had the opportunity to observe how deeply Blake was sleeping when he
retrieved his cell phone from the couch. The fact Blake was nearby but not in the bed he
shared with D.P. leads to the reasonable inference that D.P. would believe the person in
her bed committing a sexual act on her, whom she could not see, was her husband and
not defendant.
       The facts of this case are arguably stronger than those in Leal because the
defendant there did not have hair on his back like the victim’s husband and he also had
facial hair, which the victim’s husband lacked. The facts in this case are also very similar
to those in Navarro where the defendant stealthily entered the victim’s room while she
was still asleep and engaged her in sexual intercourse when the victim’s husband was not
in the room but in the living room drinking alcohol.

                                            10.
       The facts here differ from those in Williams in two relevant ways. First, the victim
in Williams woke up and talked to the defendant, asking when he had arrived. Second,
Williams responded to the victim in a low whisper so she could not detect whether the
voice was her husband’s. Arguably the concealment in Williams was more active than
what occurred in Navarro, Leal, and the instant action. In each of the published
authorities as well as here, however, there was intentional concealment by a defendant
attempting to hide his identity from the victim, personating another to effectuate a sexual
act with the victim.
       Defendant’s observations of an unconscious husband separated from his
unconscious wife—albeit by a short distance—and his stealth in entering D.P.’s bedroom
and her bed, show a clever plan intended to deceive. Prior to this incident, defendant was
also found next to Taryn in the bed she was sleeping in. Defendant was alert enough to
find his phone, call his boss, and to observe the sleeping state of everyone in the house.
This is all evidence from which the jury could reasonably find artifice: a clever plan
intended to deceive. Slipping into D.P.’s bedroom and bed while she was asleep with her
back turned to defendant was an act of pretending from which the jury could reasonably
infer pretense under the circumstances.
       From the totality of the circumstances, the jury could further infer concealment,
which includes both an act of refraining from disclosure and hiding to prevent discovery.
Defendant’s conduct undeniably involved multiple acts to refrain from disclosing his
identity to D.P. When the phone rang and D.P. reached over to answer it, defendant’s act
of covering himself with a bedsheet involved hiding himself to prevent discovery. We
reject defendant’s argument that covering himself was incidental to the sexual act
because he was still sexually engaging D.P. when the phone rang. Even if defendant had
finished the sexual act, by covering himself, he continued his artifice, pretense, and
concealment. If we were to conclude the act of defendant covering himself was
incidental to the sexual conduct, this concealment demonstrates defendant engaged D.P.

                                            11.
without her knowledge that it was defendant and without giving him consent or
permission to do so. It was also indicative of defendant’s state of mind throughout the
incident, as well as his ability to form a plan to conceal himself.
       There was substantial evidence before the jury from which it could reasonably find
defendant penetrated D.P. by means of artifice, pretense, and concealment. The
prosecution established this element of the offense, as well as the other elements of the
offense, beyond a reasonable doubt. There was, therefore, no violation of defendant’s
right to due process. (See In re Winship (1970) 397 U.S. 358, 364.)

II.    CALCRIM No. 1051 Instruction*
Introduction
       Defendant contends CALCRIM No. 1051, the pattern jury instruction for an
allegation of section 289, subdivision (f), failed to apprise the jury of the elements of the
offense because it omitted the necessary finding defendant caused the victim’s false
belief that another person was penetrating her vagina with his fingers. Defendant argues
the instruction failed to explain to the jury it had to find a causal link between defendant’s
actions and the victim’s belief. The People reply defendant failed to object to the
instruction and has therefore forfeited appellate review. The People further argue the
instruction adequately informed jurors there was no offense unless defendant induced
D.P.’s false belief that he was her husband, thereby requiring a causal link between
defendant’s actions and the victim’s belief. We find no instructional error.
Forfeiture
       A party may not complain on appeal that an instruction correct in law and
responsive to the evidence was too general or incomplete unless the party has requested
appropriate clarifying or amplifying language. (People v. Hart (1999) 20 Cal.4th 546,
622.) Thus, the People are correct in asserting a claim of instructional error is not

       *See footnote,   ante, page 1.


                                             12.
cognizable on appeal if the instruction is correct in law and the defendant fails to request
a clarifying instruction. (People v. Campos (2007) 156 Cal.App.4th 1228, 1236 [claims
of clarity and completeness of instructions forfeited without request for clarification].) If,
however, the asserted error consists of a failure to instruct on an essential element of the
offense, the failure to lodge an objection does not preclude appellate review of the issue.
(People v. Guerra (2006) 37 Cal.4th 1067, 1138, overruled in part on other grounds in
People v. Rundle (2008) 43 Cal.4th 76, 151.) Because defendant’s assertion of error is
based not on a claim the instruction was unclear or needed amplification but omitted an
element of the offense, we review the merits.
Analysis
       Trial courts have a sua sponte duty to instruct the jury on general principles of law
relevant to the issues raised by the evidence and necessary for the jury’s understanding of
the case. (People v. Anderson (2011) 51 Cal.4th 989, 996; People v. Martinez (2010) 47
Cal.4th 911, 953.) The trial court’s sua sponte duty to instruct includes instructions on all
the elements of the offense. (People v. Merritt (2017) 2 Cal.5th 819, 824; People v. Mil
(2012) 53 Cal.4th 400, 409; People v. Magee (2003) 107 Cal.App.4th 188, 193.)
       In assessing a claim of instructional error or ambiguity, we consider the
instructions as a whole to determine whether there is a reasonable likelihood the jury was
misled. We do not consider parts of an instruction. (People v. Solomon (2010) 49
Cal.4th 792, 822.) They are judged from the entire charge of the court and the entire trial
record. (People v. Moore (1996) 44 Cal.App.4th 1323, 1330–1331.)
       The jury was instructed with the following relevant paragraphs of CALCRIM
No. 1051:

             “The other person submitted to the act because she believed the
       person committing the act was someone she knew other than the defendant;

              “AND



                                             13.
             “… The defendant tricked, lied, used an artifice or pretense, or
       concealed information, intending to make the other person believe that he
       was someone she knew, while intending to hide his own identity.”
       Defendant argues the instruction failed to establish a causal link between the
victim’s belief that defendant was her husband and defendant’s actions. The first part of
the instruction, however, requires the jury to find the victim submitted to the sexual act
because she believed the person committing the act was someone she knew other than
defendant. The second part of the instruction required the jury to find defendant tricked,
lied, used artifice, pretense, or concealed information with the intent to make the victim
believe he was someone she knew while intending to hide his own identity. There is no
missing element in the trial court’s instructions to the jury. To find defendant guilty, the
jury had to find a causal connection between the victim’s erroneous belief as being
caused by defendant’s conduct.
       The instruction required findings from the jury that the victim’s belief was due to
the artifice, pretense, or concealment of information by defendant. Because the
instruction required both findings, it established the causal link between the victim’s
belief and defendant’s conduct leading to that false belief. Other instructions required the
jury to presume defendant innocent and find the allegations true beyond a reasonable
doubt (CALCRIM No. 220), the People to prove both the act charged as well as
defendant’s intent (CALCRIM No. 225), and the jury to find defendant had the specific
intent to commit the crime of sexual penetration by fraud (CALCRIM No. 251). Read as
a whole, the jury instructions adequately informed the jury of its duty to find each
necessary element of section 289, subdivision (f).
       The instruction did not expressly use the phrase “causal connection” in describing
what the jury had to find. The finding of a causal connection is covered by the
requirement that both elements be found true by the jury and is implicit in CALCRIM
No. 1051. Although the instruction could have been clarified, the failure of the trial court
to do so did not deprive defendant of instructions correct in law and required each


                                             14.
element of the offense be found true by the jury. The instructions were not impermissibly
ambiguous to the extent the trial court failed to fulfill its sua sponte duty to offer its own
clarifying instructions. (See People v. Hart, supra, 20 Cal.4th at p. 622.) There was no
instructional error in the trial court’s use of CALCRIM No. 1051.

III.   Discharge of Juror No. 26*
       Defendant contends the trial court abused its discretion in discharging Juror
No. 26 for failing to disclose his prior close relationship with Deputy Tafoya. The
discharge occurred prior to jury deliberations. We reject this contention.
Discharged Juror
       Here, the trial court properly inquired into Juror No. 26’s friendship with defense
witness Rudolfo Tafoya before discharging him from the jury. During voir dire,
prospective jurors had been asked to raise their hand if any relatives or close friends had
law enforcement training and whether any relatives or close friends had been arrested by
law enforcement. Five jurors responded affirmatively and were questioned about their
relationships by the court. Juror No. 26 was silent about having any connection to law
enforcement. Juror No. 26 did indicate he had a few family members who were arrested
for drunk driving and he thought a few of the cases were not handled well by the Fresno
Police Department. Only after Tafoya testified did the juror contact the bailiff and notify
him he recognized the witness.
       Outside the presence of the jury, Juror No. 26 notified the court and counsel he
had been friends with Tafoya during college, starting in 2008 and 2009 through
graduation in 2012. Juror No. 26 socialized with Tafoya and they went to parties
together. They socialized together at a friend’s house and had barbeques during the
summer. Juror No. 26 and Tafoya had seen each other less frequently during the past



       *See footnote,   ante, page 1.


                                              15.
three years since they graduated. Occasionally their paths would cross, and they would
catch up with one another.
       Juror No. 26 admitted he did not indicate during voir dire he had a friend or
relative in law enforcement. Juror No. 26 said he knew Tafoya by Rudy, not his given
first name of Rudolfo. He admitted he always knew Tafoya was in law enforcement.
Juror No. 26 was aware of Tafoya’s workouts and the physical training. The court
directed Juror No. 26 to go back to the jury room and to not talk to the other jurors about
what they had discussed.
       The court informed counsel it was entertaining substituting Juror No. 26 based on
his failure to notify the court of his friendship with Tafoya. The court noted Juror No. 26
was well aware Tafoya was going through law enforcement training. The court was
skeptical the juror would not have recognized the deputy’s last name even if the juror had
not recognized the deputy’s first name. The court noted its concern about the closeness
of the relationship given their socializing on weekends and the inability of both attorneys
to question the juror about his relationship with the deputy. The court could not see how
the juror would be able to question his friend’s credibility. The prosecutor thought it
would be preferable to err on the side of caution and excuse Juror No. 26. Defense
counsel had nothing to add. The court found the omission intentional—especially given
the juror’s intelligence and comment he had a photographic memory—and excused Juror
No. 26.
Analysis
       Trial courts have a duty to make whatever inquiry is reasonably necessary to
ascertain whether a juror should be discharged once the court is placed on notice good
cause to discharge the juror may exist. On appeal, we review the trial court’s decision to
discharge a juror under an abuse of discretion standard, upholding the court’s decision if
the record supports the juror’s disqualification as a demonstrable reality. Under the
demonstrable reality test, the record must show the trial court, as trier of fact, relied on

                                              16.
evidence supporting its conclusion the juror’s disqualification was established. In
determining whether the trial court’s conclusion is supported by the evidence on which
the court relied, we consider both the evidence itself and the record of reasons provided
by the court. We do not reweigh the evidence. (People v. Williams (2013) 58 Cal.4th
197, 292.)
       Trial courts are frequently confronted with conflicting evidence on the question of
whether a deliberating juror has exhibited bias. Often, the challenged juror will deny bias
and other jurors will testify to examples of how he or she revealed it. The trial court must
then weigh the credibility of those testifying and draw upon its own observation of the
jurors throughout the proceedings. Reviewing courts defer to factual determinations
based on these assessments. (People v. Lomax (2010) 49 Cal.4th 530, 590.)
       Nondisclosure or misrepresentation of material information by a juror during voir
dire constitutes juror misconduct. (In re Hitchings (1993) 6 Cal.4th 97, 120–123.)
       Juror No. 26 had an ongoing relationship with Deputy Tafoya while they attended
college together. The trial court found implausible Juror No. 26’s explanation that during
voir dire he did not recognize Tafoya’s name because Tafoya used the name Rudy in
college rather than his given name of Rudolfo. Explaining its observations of Juror
No. 26 during voir dire, the trial court noted the juror had a good memory. Based on this
observation, the trial court further found implausible Juror No. 26’s failure to remember
his relationship with Tafoya in college.
       The trial court’s conclusions regarding Juror No. 26’s prior relationship with
Tafoya are manifestly supported by the evidence. The trial court’s findings are supported
by Juror No. 26’s testimony. Juror No. 26 had graduated from college in 2012, only three
years prior to the trial, and he had occasionally seen Tafoya in public places after
graduation. This evidence also supported the court’s conclusion that Juror No. 26’s
explanation of a lapse of memory should be discredited. Further, the lack of objection by



                                            17.
the prosecutor and defense attorney to the trial court’s observations and findings support
the conclusion the trial court did not abuse its discretion in dismissing Juror No. 26.
                                      DISPOSITION
       The judgment is affirmed.

                                                          ___________________________
                                                                              PEÑA, J.
WE CONCUR:


 __________________________
FRANSON, Acting P.J.


 __________________________
SMITH, J.




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