Filed 2/5/16 P. v. Andrews CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B258671

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA095723)
         v.

STEVEN SHANE ANDREWS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Mike Camacho, Judge. Affirmed.


         Verna Wefald, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and
David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.


                               ____________________________________
       A jury convicted defendant and appellant Steven Andrews, a middle school
teacher, of more than a dozen sex offenses involving a 14-year-old female student.
The trial court sentenced Andrews to an aggregate term of 15 years and 8 months in state
prison. We reject Andrews’s claims that the trial court erred in (1) denying his motion to
recuse the entire Los Angeles District Attorney’s Office; (2) deciding not to discharge a
seated juror for bias; and (3) giving a flight instruction. The judgment is affirmed.
                                          FACTS
Background
       Andrews taught history and served as the director of the Associated Student Body
(ASB) programs at Lorbeer Middle School in Pomona. He turned 40 years old early in
the 2010-2011 school year. The victim, Antonia Doe, turned 14 years old in April 2011
and was nearing the end of eighth grade. She had taken history with Andrews in seventh
grade, and, during the second semester of seventh grade and in eighth grade, also
participated in his ASB class. Throughout the same time frame, Antonia felt emotionally
confused and insecure because her parents were having marital problems, and she and her
mother had moved out of the family home. Antonia trusted Andrews, and started
discussing her personal life with him. Eventually, the relationship moved onto kissing
and touching. About May 2011, Andrews and Antonia started a sexual relationship that
continued over the next several months and which is described in more detail below.
Counts 12 through 17 (Sexual Penetration by Foreign Object and Lewd Acts upon a
Child Occurring During May 2011)1
       A few weeks after her birthday in April 2011, Andrews asked Antonia if their
relationship could “go further,” and she said yes. Initially, Andrews kissed Antonia
briefly, but then the physical touching progressed, with Antonia allowing Andrews to

1
        We identify the counts as numbered in the information and the abstract of
judgment, serially beginning with count 2. The counts were numbered slightly
differently on the verdict forms submitted to the jury (serially beginning with count 1,
rather than, as noted, beginning with count 2). The numbering of the counts on the jury
verdict forms appears to have been for sake of clarity for the jury at trial.


                                             2
touch her breasts over her clothing. They started having physical contact a few times a
week in his classroom and the gym. Then, sometime around mid-May, Andrews and
Antonia met behind a curtain in the gym during the lunch break. The gym was locked at
lunchtime, but Andrews had the key. On this occasion, Andrews kissed Antonia more
intensely, and put his hands up her shirt and down the front of her pants.
       On another occasion around mid-May, when they were in his classroom during
lunch, Andrews asked Antonia if she wanted to touch his erection. He unbuckled his
pants and led her hand down to his penis. Antonia pulled down her shorts and
underwear, and he rubbed his penis over her vagina.2
       After the occasion in his classroom noted immediately above, Andrews and
Antonia started a continuing relationship involving sexual conduct. They would meet in
the gym, either at lunchtime or after school. During this time, Andrews put his fingers
inside Antonia’s vagina on several occasions.
       As the sexual relationship developed, Antonia thought she loved Andrews and
thought of him as her boyfriend. He told her that he was going to divorce his wife and
marry her after she finished high school. Andrews wrote Antonia a letter for her eighth-
grade graduation. He wrote that he loved her and wanted to be with her. He also gave
her a shirt, a sweatshirt, and a necklace.3
Count 11 (Unlawful Sexual Intercourse with a Minor Under the Age of 16 Years)
       During the course of the events summarized above, Andrews and Antonia began
talking about having sexual intercourse. Andrews told Antonia that he did not want her
to lose her virginity in his classroom.


2
      At trial, Antonia described Andrews’s penis. She testified that he was not
circumcised and that his penis had a noticeable “coloration,” that it was “like white and
red.” When Andrews testified in his own defense, he acknowledged that he suffered
from dermatitis on his face and genitals.
3
       Antonia kept the gifts. After the Los Angeles County Sheriff’s Department started
an investigation, Antonia gave the gifts she had received from Andrews to deputies.


                                              3
       On May 26, 2011, Andrews and Antonia made arrangements to go to his house to
have sex. The plan was for her to be dropped at school by her mother, but not to go to
her classes, and he would meet her and drive her to his house in his truck. The plan fell
apart when Andrews got delayed with work. Andrews told Antonia to go to her early
classes, then leave and go to his truck in the school parking lot. At around 11:00 a.m.,
Antonia went to Andrews’s truck and hid in the backseat so she would not be seen.
Andrews showed up about five minutes later, and drove Antonia to his house, where they
had sexual intercourse.4 Andrews told Antonia that he loved her.
       As Andrews was driving Antonia back to school, Lorbeer’s principal, Krystana
Walks-Harper, called Andrews’s phone and asked if he knew where Antonia was.
Andrews said that he did not know and that he had not seen her recently. About 10
minutes later, Andrews called Walks-Harper and said that he had located Antonia and
had convinced her to go back to school.
       Andrews dropped Antonia off at a park near the school, and he drove to the school
and met up with Walks-Harper. Meanwhile, Antonia walked back to the school where
she met up with Walks-Harper and Andrews who were waiting at a corner of the school
grounds. They all went to the principal’s office. Andrews asked to remain with Antonia
while Walks-Harper spoke to her about her absence. Antonia said she left school because
she was getting bullied by other girls and that her parents’ divorce was affecting her.
After Andrews stepped out, Antonia told Walks-Harper that everything was fine. Walks-
Harper excused Antonia to go back to her classes.5



4
         On this occasion and others, Andrews ejaculated inside Antonia; he told her that
she did not need to worry about getting pregnant because he had a vasectomy. During his
trial testimony, Andrews testified that he had, in fact, had a vasectomy; the testimony was
given when he explained that it had caused a problem with his testicle which caused him
pain during sex.
5
      Andrews later told Antonia that Walks-Harper had subsequently asked him if he
and Antonia were doing anything, and that he had said no.


                                             4
       Following the sexual intercourse offense on May 26, 2011, Antonia and Andrews
had phone sex about once a week. Further, she began to write down in a journal the
times that they had sex because it was “special to [her]” and she “just wanted to
remember the days that [they] did it.”
Counts 8, 9 and 10 (Oral Copulation, Sexual Penetration by Foreign Object and
Unlawful Sexual Intercourse with a Minor Under the Age of 16 Years)
       On June 20, 2011, Antonia’s class had a graduation field trip to Disneyland.
Antonia and Andrews made plans to go to a hotel room on the day of the field trip.
Before Antonia got on the bus, Andrews gave her a cell phone so that they could
communicate without anyone knowing. After spending time with her classmates,
Antonia had free time without a chaperone. Andrews texted Antonia that he would meet
her in an hour. He picked her up outside the Disneyland gate, and took her to the Alpine
Inn near the park where they had sexual intercourse.6 Andrews put his tongue and his
finger inside her vagina. Afterward, Andrews took Antonia back to Disneyland and she
rejoined her classmates.
Counts 6 and 7 (Unlawful Sexual Intercourse and Sexual Penetration by Foreign
Object with a Minor Under the Age of 16 Years)
       On July 26, 2011, around noon, Andrews called Antonia and asked her to meet
him at Decker Park. She walked to the park and met Andrews at his parked truck. They
had sexual intercourse in his truck and he put his finger inside her vagina.
Counts 4 and 5 (Unlawful Sexual Intercourse and Oral Copulation with a Minor
Under the Age of 16 Years)
       On August 5, 2011, Andrews and Antonia arranged another meeting. She told her
parents she was going to a friend’s house, and Andrews picked her up near her house.
They drove to a Best Western hotel in Diamond Bar where they had sexual intercourse



6
       Andrews made a reservation for a room at the Alpine Inn in person on June 6,
2011, two weeks before the Disneyland field trip. He pre-paid for a room with a cash
deposit. He checked into the hotel at about 1:30 p.m. on June 20, 2011.

                                             5
and she put her mouth on his penis.7 Afterward, Andrews drove Antonia back to her
street near her house.
Count 3 (Unlawful Sexual Intercourse with a Minor Under the Age of 16 Years)
       On August 17, 2011, Andrews drove to location near Antonia’s house at about
5:30 a.m., picked her up and drove to Decker Park where they parked. They talked for a
few minutes, and then Andrews said that he was “horny.” They had sexual intercourse in
his truck.
Count 2 (Unlawful Sexual Intercourse with a Minor Under the Age of 16 Years)
       In September 2011, Antonia started ninth grade year at Diamond Ranch High
School, but remained in contact with Andrews. On September 10, 2011, Antonia called
Andrews and told him that she would be alone at her house for a couple of hours. At
about noon, Andrews parked across the street, and Antonia let him in. They had sex in
her bedroom.
       After having sex, they talked about whether they were going to continue their
relationship with Antonia being at another school. Andrews told Antonia that he was not
going anywhere. Antonia told Andrews that it would probably be a good idea “just to
take a break” because she was going to high school and would be busy with school
activities, and needed to move on. She said their relationship was difficult because she
had to hide it. He got mad and asked her why she did not text him during the day
anymore. She began to feel ashamed and disgusted about the relationship.
Count 19 (Possession of Material Depicting Minors in Sexual Conduct)
       After Andrews was arrested, police officials recovered his laptop computer. Los
Angeles County Sheriff’s Department Detective Thomas Fortier examined the contents of



7
       Andrews pre-paid for the room with cash the day before. The front desk
supervisor, Mayur Jatwani, who lived at the hotel, checked in Andrews alone, on August
5, 2011. Later, at around 3:00 p.m., Jatwani passed Andrews’s room and saw him and a
young “Asian” girl come out of his hotel room. As soon as they saw Jatwani, they
immediately turned around and left quickly in the opposite direction. Antonia ancestry is
Filipino and Mexican.

                                            6
the computer. It did not contain any photographs of Antonia, but did contain six
“thumbnail” photographs depicting female minors engaged in sexual activity.
The Investigation and Other Evidence
      In early June 2011, one of Andrews’s fellow teachers at Lorbeer, Darryl
Hutchinson, went to Andrews’s classroom to look for him. Hutchinson worked with
Andrews on the school’s ASB program. When Hutchinson got to Andrews’s classroom,
the door was locked. He opened it with his key and found Andrews and Antonia inside,
sitting together at a table. Hutchinson became concerned and told Andrews he should not
be in a locked room with a student. Hutchinson reported this incident to principal Walks-
Harper.
      On the last day of the school year for teachers in June 2011, Andrews told
Hutchinson that he (Andrews) was cheating on his wife. During the same general time
frame, Andrews talked to Hutchinson about wanting to transfer to Diamond Ranch High
School.
      Sometime around September 2011, Andrews’s wife told Hutchinson that she was
concerned about text messages that she had seen on Andrews’s phone. Hutchinson told
principal Walks-Harper that he was concerned that Andrews was texting Antonia.
Hutchinson also asked his wife, who worked as a vice principal at another school, to
speak to the student resource officer at her school, San Bernardino County Sheriff
Department Deputy Mary Jean Higgins, about the situation. Because Lorbeer is in Los
Angeles County, Deputy Higgins relayed information about the concerns with Andrews
to the Los Angeles County Sheriff’s Department (LASD).
      On September 28, 2011, LASD Deputy “Thorn” talked to Antonia in the office at
Diamond Ranch High School. Deputy Thorn asked Antonia if rumors that she and
Andrews were having a relationship were true. Because she was scared and wanted to
protect Andrews, Antonia said they were not true. After talking with the deputy, Antonia
left the principal’s office, went to a bathroom, and called Andrews. She said that
someone knew about their relationship and asked if he had told anyone. She said that a



                                            7
deputy was going to his school. Andrews had been at the Lorbeer school early in the day;
by the time Deputy Thorn arrived, he was not there.
       Antonia went back to class, but after thinking that this was her opportunity to tell
the truth, she went back to the office and asked a school official to call the deputy back.
Deputy Thorn returned and asked Antonia if she was ready to tell the truth, and she said
yes.
       Later during the day on September 28, 2011, Andrews called Hutchinson at the
Lorbeer school and asked if the police were looking for him. Then, at around 6:30 p.m.,
Andrews called Hutchinson again and asked him to retrieve his laptop computer from his
classroom so that it would not be stolen. Hutchinson called Deputy Thorn, who asked
Hutchinson to hold Andrews’s computer for the deputies.
       On the evening of September 28, 2011, LASD Special Victims Bureau Detective
Janet O’Bryan interviewed Antonia at her home. Detective O’Bryan asked Antonia to
text and call Andrews to see if he would admit that they had sex. Starting at about 11:38
p.m., Antonia and Andrews had a text conversation that included the exchanges
summarized here:
       “Antonia: U awake?
       Andrews: Somewhat.
       Antonia: Baby can’t sleep.
       Andrews: What’s going on exactly.
       Antonia: The cops came to school, didn’t tell them anything, haven’t heard
       from them since, are u ok?
       Andrews: Ya, ive got to go into the district tomorrow and have a talking to
       as well, what’s home like.
       Antonia: Dad asking questions, but nothing serious. . . .
       Andrews: Ok I should find out tomorrow then who came after me with
       this. . . .




                                              8
         Antonia: Ok was it her, the O[?8] . . .
         Andrews: No. It wasn’t the O. . . . Not sure where this came from but
         somebody somewhere said something to someone and [they] had to check
         it out.
         Antonia: Hmm, like im still wondering who would’ve even tipped
         someone? Have you like told your attorney that weve made love?
         Andrews: I talk with u that’s all. . . . [¶] . . . Just explain how nothings
         happened and its all rumors.
         Antonia: Oh well I don’t think its a good idea to meet up friday anymore
         but we can talk on the phone?
         Andrews: Yes, but need some of the dust to settle here. Find out tomorrow
         wtf was said about me and from whom. . . . [¶] . . . im gonna be extremely
         cautious tomorrow. U b too.
         Antonia: Babe . . . listen okay? i love you, i miss you. im sorry things are
         the way they are right now. i don’t think this is anything serious itll blow
         over like before . . . forever and a day?<?
         [¶] . . . [¶]
         Andrews: . . . Just this is serious with the district and the cops right now. I
         have to let them know nothing happened. I think the fact that u still have ur
         phone and i wasn’t arrested is good. Just more rumors.
         Antonia: haha yes you being arrested is no bueno. . . ugh baby im tired :(
         can we talk real quick before I go to bed?
         Andrews: Ya call me.”9




8
      During their relationship, Andrews used the term “the O” to describe his wife to
Antonia.
9
         The text messages summarized here were not presented at trial in a time-sequence
order.

                                                   9
       Antonia then called Andrews. Their phone conversation was recorded and played
for the jury at trial, and a transcript was provided to the jurors. The phone conversation
included the exchanges summarized here:
       “[Antonia]: Are you going to work tomorrow?
       [Andrews]: No. I’ve been asked not to go to work now, through the District.
       [Antonia]: Oh.
       [Andrews]: And I’ve been asking – asking some questions and I want to find out
       what’s going on. Somebody said something that was – they had to follow up on.
       That’s why they came and talked to you.
       [Antonia]: Oh, do you think someone like followed us to the motel?
       [Andrews]: Uhn-uhn.
       [¶] . . . [¶]
       [Antonia]: Okay. And none of the teachers, like Hutchinson hasn’t been asking
       anything?
       [Andrews]: No. No.
       [Antonia]: See, that’s funny, because like why – why now? Like this is really
       random.
       [Andrews]: Yeah, I know. But, you know, when you’re a school and you go and,
       who knows?
       [¶] . . . [¶]
       [Antonia]: Yeah. What do you think they’ll charge you with if something
       happens?
       [Andrews]: I don’t know. I don’t know honestly. It’s changed. Uhm, today was
       just like the shock of it all and stuff, and like this is what’s going on this week.
       You know, if --- if ---
       [Antonia]: Well, it’ll be fine, though.
       Andrews: Yeah, I mean, it’s just like you, you know, like how you told the cops
       and stuff nothing happened.
       [¶] . . . [¶]

                                              10
[Andrews]: . . . I have to be at the District at 8 a.m. I have to talk to the head of
Personnel. . . . [L]ike --- you know, somebody said something – something to
somebody. And maybe somebody’s mom overheard it and, you know, called the
District. That heard this about a teacher and –
[Antonia]: Yeah.
[¶] . . . [¶]
[Andrews]: Remember what we said about the patience.
[Antonia]: Mmnh-mmnh
[¶] . . . [¶]
[Antonia]: This too shall pass.
[Andrews]: All things do. Just give me tomorrow and stuff like --- and I’ll let you
know what – exactly what happened and stuff. Okay?
[Antonia]: Okay.
[Andrews]: And, uh, if anybody asks, keep your mouth shut, you know.
[¶] . . . [¶]
[Antonia]: . . . Are we ever going to meet up again?
[Andrews]: After – after this thing is over and stuff, we’ll --- we’ll see okay?
[¶] . . . [¶]
[Antonia]: . . . I still need you . . .
[Andrews]: I know.
[¶] . . . [¶]
[Antonia]: Will we ever be together again, though?
[Andrews]: And hang out and everything? Of course.
[Antonia]: No, will we ever make love again?
[Andrews]: Ah, you know, I’m asking for one day.
[¶] . . . [¶]
[Antonia]: I think, now, that just all the times that we’ve made love was just a
game to you.
[Andrews]: No.

                                          11
      [Antonia]: Well, I mean, obviously, if you can’t even say one thing, then, it’s like
      it doesn’t mean anything to you obviously.
      [Andrews]: No. Listen to me. Okay. Everything, everything has just come to
      this head. And just let me explain for a second, please. This is not a --- I’m not
      playing games with you. Okay. I’m not messing with you. . . .
       [¶] . . . [¶]
      [Antonia]: Was the love we made just sex for you?
      [Andrews]: I’m sorry. What?
      [Antonia]: I said, ‘The love that we made, was it just sex for you?
      [Andrews]: No.
      [¶] . . . [¶]
      [Antonia]: And I love you. But, I just, I need some kind of reassurance that it
      wasn’t just sex to you.
       [¶] . . . [¶]
      [Andrews]: It’s not just sex for me.
      [Antonia]: I need you inside of me, again, baby.
      [Andrews]: I really can’t think about that stuff right now.
       [¶] . . . [¶]
      [Antonia]: Will you still make love to me?
      [Andrews]: Say it again.
      [Antonia]: I said, ‘Will you still make love to me’?
      [Andrews]: I will.”


      Andrews and Antonia then had phone sex. During their exchanges, Antonia
asked, “You miss my pussy, baby, don’t you?” and Andrews answered, “Yeah. Oh, I
need to touch you.” When Antonia asked, “You want to make love like before?”
Andrews answered that he wanted “something new. . . . I want you to go down on me,
baby.” They continued having phone sex as Andrews masturbated. As the phone sex
ended, Antonia told Andrews, “I really like the way you came on my stomach. . . .

                                             12
You’re gonna do it again?” and Andrews said, “Yeah.” After the phone sex, Antonia
asked Andrews, “Was it hotter than last Saturday, baby?” and Andrews responded,
“Oh yeah.”
       As noted above, Antonia kept a written journal of her “special moments” with
Andrews. She recorded five of the six sexual intercourse offenses with Andrews; the
final incident on September 10, 2011 was not recorded because it occurred during one of
the times she was moving in and out of the family home and the journal was boxed away.
When Detective O’Bryan interviewed Antonia, she gave the writing to the detective.
Antonia also handed over the phone that Andrews had given her.
       Detective Thomas Fortier examined Andrews’s computer. There were no
photographs of Antonia, but there were six thumbnail photographs depicting female
minors engaged in sexual activity. The computer operating system was installed in
February 2011, so the photographs had to have been installed between that date and the
date when the computer was taken during the police search.
The Criminal Proceedings
       In February 2012, the People filed an information charging Andrews with the
following crimes, listed respectively: unlawful sexual intercourse with a minor under the
age of 16 years (count 2; Pen. Code, § 261.5, subd. (d));10 unlawful sexual intercourse
with a minor under the age of 16 years (count 3; § 261.5, subd. (d)); unlawful sexual
intercourse with a minor under the age of 16 years (count 4; § 261.5, subd. (d)); oral
copulation of a minor under the age of 16 years (count 5; § 288a, subd. (b)(2); unlawful
sexual intercourse with a minor under the age of 16 years (count 6; § 261.5, subd. (d));
sexual penetration by foreign object of a minor under the age of 16 years (count 7; § 289,
subd. (i)); oral copulation of a minor under the age of 16 years (count 8; § 288a, subd.
(b)(2)); sexual penetration by foreign object of a minor under the age of 16 years (count
9; § 289, subd. (i)); unlawful sexual intercourse with a minor under the age of 16 years
(count 10; § 261.5, subd. (d)); unlawful sexual intercourse with a minor under the age of

10
     All further undesignated section references are to the Penal Code. We have
renumbered the counts to conform with the jury verdict sheets and abstract of judgment.

                                            13
16 years (count 11; § 261.5, subd. (d)); sexual penetration by foreign object of a minor
under the age of 16 years (count 12; § 289, subd. (i)); lewd act upon a child (count 13;
§ 288, subd. (c)(1); sexual penetration by foreign object of a minor under the age of 16
years (count 14; § 289, subd. (i)); lewd act upon a child (count 15; § 288, subd. (c)(1));
sexual penetration by foreign object of a minor under the age of 16 years (count 16;
§ 289, subd. (i)); lewd act upon a child (count 17; § 288, subd. (c)(1)); and possession of
matter depicting a minor engaged in sexual conduct (count 19; § 311.11, subd. (a)).11
       The charges were tried to a jury in February and March 2014, at which time the
prosecution presented evidence establishing the facts summarized above. Andrews
testified in his own defense. He admitted that he had a “personal” relationship with
Antonia, but denied that they ever engaged in any sexual activity. He denied ever
“knowingly” having phone sex with Antonia, explaining that he had phone sex with a
person using the name Jennifer who used a phone number that he did not recognize.
On cross-examination, he admitted that he had phone sex with Antonia during their
phone call on September 28, 2011. He gave the following explanation for why had
phone sex during the call: “The phone sex that I had on September 28th was in response
to the fact that I could not get ahold of law enforcement and that my fear was that
Antonia, in her fit of anger, was going to accuse me of actual real sex events, and, so, by
engaging in the phone sex, fake, real, whatever you want to believe, was to prove that she
could not point out any specific dates, times, or instances that we actually engaged in sex
and the fact that, if at any time during that call that she implied that my penis had entered
her vagina, she would not be able to explain my dermatitis nor would she understand that
I was getting prepped for surgery for an epididymectomy on my left testicle.”




11
       Initially, the information further alleged a count 18 for first degree residential
burglary (§ 459) on the theory that Andrews had entered Antonia’s home on September
10, 2011 with the intent to commit a felony. Count 18 was dismissed before the case was
submitted to the jury.

                                             14
        The jury returned verdicts finding Andrews guilty of all of the counts identified
above. On August 28, 2014, the trial court sentenced Andrews to a total aggregate term
of 15 years and 8 months in state prison as follows: On count 2, unlawful sexual
intercourse with a minor under the age of 16 years, the court imposed the upper term of
four years. The court added consecutive one-year terms (1/3 the mid-term) on counts 3,
4, 6, 10, and 11, plus consecutive 8-month terms (1/3 the mid-term) on counts 5, 7, 8, 9,
12, 13, 14, 15, 16, and 17. On count 19, the court imposed a concurrent one-year term.
        Andrews filed a timely notice of appeal.
                                       DISCUSSION
I.      Recusal
        Andrews contends the judgment must be reversed because the trial court erred in
denying his motion to recuse the Los Angeles County District Attorney’s Office, in its
entirety, from prosecuting the charges against him. We disagree.
        Section 1424 establishes the procedures governing disqualification of prosecuting
attorneys. Section 1424, subdivision (a)(1), provides that a motion to disqualify a district
attorney “may not be granted unless the evidences shows that a conflict of interest exists
that would render it unlikely that the defendant would receive a fair trial.” (And see also
Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711 (Haraguchi); and Hollywood v.
Superior Court (2008) 43 Cal.4th 721, 727 (Hollywood).) The statute contemplates a
two-part test. In the first step, the trial court must determine whether the evidence shows
there is a conflict of interest, meaning whether the evidence demonstrates there is a
“ ‘reasonable possibility that the [prosecutor’s] office may not exercise its discretionary
function in an evenhanded manner.’ ” In the second step, the court must determine
whether the conflict is “ ‘ “ ‘so grave as to render it unlikely that [the] defendant will
receive fair treatment during all portions of the criminal proceedings.’ ” ’ ” (Haraguchi,
supra, 43 Cal.4th at pp. 711-713; and see also Hollywood, supra, 43 Cal.4th at pp. 727-
728.)




                                              15
       A motion to recuse is directed to the sound discretion of the trial court, and its
decision either to grant or deny the motion is reviewed for abuse or discretion.
(Haraguchi, supra, 43 Cal.4th at p. 711; Hollywood, supra, 43 Cal.4th at p. 728.)
On review of a ruling on a motion to recuse, the trial court’s findings of historical fact are
reviewed under a substantial evidence standard of review, its conclusions of law are
reviewed de novo, and its application of the law to the facts as fixed by the court’s
determination is reversible only where the party challenging the ruling demonstrates that
it amounted to an abuse of judicial discretion. (Haraguchi, supra, 43 Cal.4th at pp. 711-
712.) The recusal of an entire prosecuting agency, as opposed to a particular, individual
prosecutor, “‘is an extreme step’” which requires a showing that the recusal of the entire
prosecutor’s office al “is necessary to assure a fair trial. The showing of a conflict
necessary to justify so drastic a remedy must be especially persuasive.” (Spaccia v.
Superior Court (2012) 209 Cal.App.4th 93, 106-107.)
The Motion Setting
       Here, Andrews filed a motion to recuse the Los Angeles County District
Attorney’s Office some seven months after the People filed the information. Andrews’s
motion to recuse the District Attorney’s Office in toto was based on three principle
claims. First, he claimed the District Attorney’s Office could not be fair to him because
Antonia’s father was an investigator employed in the District Attorney’s Office. As
stated by Andrews’s motion: “The District Attorney’s Office . . . appears to be pursuing
private justice on behalf of a District Attorney’s Office employee rather than pursuing
public justice through an even-handed and fair application of the laws, consistent with the
prosecution of similarly situated defendants.” Second, Andrews claimed that the District
Attorney’s Office had wrongly delegated its Brady12 discovery obligations to the
investigating detectives, and that “[t]he only rational explanation for [the] discovery
failures [was] private justice.” Finally, Andrews stated that the District Attorney’s
Office’s had made an offer to settle his case for a “determinate number of years in

12
       Brady v. Maryland (1963) 373 U.S. 83

                                             16
prison”13 that was “several hundred percent higher than [a] selection of cases reported in
the local press, which most closely approximate[d his case].” He argued that the offered,
disproportionately harsh punishment demonstrated that the District Attorney’s Office had
chosen to pursue a “selective and discriminatory” prosecution to satisfy one of the
office’s own. Andrews supported his claim of disproportionality between his case and
other similar cases by offering news articles concerning three cases involving defendants
who pled guilty to sex crimes with children.14
       The Attorney General filed opposition to Andrews’s motion to recuse the District
Attorney’s Office. The opposition argued that Andrews had failed to make a showing
that the assigned prosecutor, or the District Attorney’s Office, could not exercise its
prosecutorial functions in a fair manner. In other words, he did not point to any actual
unfair activity. The opposition argued that the prosecuting deputy district attorney had
turned over all discovery in possession of the District Attorney’s Office, and that, to the
extent materials were held by other agencies, there was no objection to “holding a
discovery hearing, attended by representatives of the agencies in possession of the
document, to resolve the issue.” Further, the assigned prosecutor at the time, Deputy
District Attorney Deborah Scott, submitted a declaration in which she stated that she
never met Antonia or her father, and had no personal or vested interest in the case.15

13
       Andrews’s motion stated that he would “not cite the exact number . . .” of years
offered. At the hearing on the motion to recuse, Andrews’s counsel represented that the
District Attorney’s Office had offered to settle the case for a 10-year prison term.
14
        We note here that none of the cases discussed in Andrews’s motion to recuse
involved prosecutions by the Los Angeles County District Attorney’s Office. Further, in
one of the cases, the defendant had pled guilty to “two felonies for having a sexual
relationship with a 14-year-old girl.” The number of counts to which the defendant pled
in the second case is not stated in the news story about the case. In the third case, the
defendant pled guilty to four counts of lewd acts with a child under the age of 14.
15
      Deputy District Attorney Scott did not try Andrews’s case. Deputy District
Attorney Lisa Coen acted as trial prosecutor. At no point after the trial court denied
Andrews’ pre-trial motion to recuse the entire District Attorney’s Office did Andrews
renew his recusal motion as to Coen.

                                             17
       At argument on Andrews’s motion, the deputy attorney general noted that the
three cases proffered by Andrews to show his plea offer was unreasonably high could not
be meaningfully compared to Andrews’s case because the strength of the evidence in
each of the cases was not known from the news stories. The prosecutor explained that
the evidence in Andrews’s case was “very compelling,” and that Andrews had not been
treated any differently than any other defendant. The trial court denied the motion to
recuse, explaining that it was “not persuaded that there [was] any impropriety, even the
appearance of impropriety on the part of the DA’s office . . . . [A]n offer of ten years
with the maximum of 17 with an apparent strong case is not at all unreasonable.”
Analysis
       It cannot be said for a number of reasons that the trial court abused its discretion in
denying Andrews’s motion to recuse. First, Andrews’s evidence did not support a
conclusion that there was a reasonable possibility the prosecutors might not exercise their
duties in an evenhanded manner. Andrews’s assertion that no prosecutor in the Los
Angeles District Attorney’s Office could prosecute him fairly and impartially because the
victim’s father was employed by the Office as an investigator was largely group-bias
speculation which failed to establish a true disabling conflict of interest. Indeed, the
assigned prosecutor in this case at the time of Andrews’s motion, Deputy District
Attorney Deborah Scott, submitted a declaration in which she attested that she had never
met the victim or the victim’s father, that she had no personal or vested interest in the
case, and that no one in the District Attorney’s Office had suggested to her that she
should prosecute the case differently than she would any other matter. The trial court
accepted this representation, and we will not reassess its credibility determination on
appeal. Further, we note that Andrews never asserted in the trial court, and has not
asserted on appeal, that either Deputy District Attorney Scott or Coen, were actually
biased.




                                             18
       We also reject Andrews’s assertion that the plea deal offered to him was
“extraordinarily high compared to the plea deals made to other similarly situated
defendants.” The showing in Andrews’s recusal motion does not support his assertion on
appeal. Andrews was charged with 17 counts of sex crimes against an emotionally
vulnerable minor over whom he held a position of trust. He faced a maximum prison
term of 17 years in state prison. We agree with the trial court that there is nothing
extraordinary to see in the District Attorney’s Office decision not to settle the case for
sentence of less than the 10 years offered. A prosecutor’s decision not to make a plea
offer that is as low as a defendant believes is appropriate is not evidence establishing that
the prosecutor is acting out of a conflict of interest. Indeed, a prosecutor has no legal
obligation to make any plea offer at all as there is no constitutional right to a plea bargain.
(People v. Trejo (2011) 199 Cal.App.4th 646, 655 (Trejo), citing Weatherford v. Bursey
(1977) 429 U.S. 545, 561.) Absent a showing of vindictiveness poisoning the criminal
proceedings, plea issues do not establish a conflict justifying recusal of a prosecutor for
trial. (Trejo, supra, 199 Cal.App.4th at p. 656.) Moreover, the news stories about three
cases submitted by Andrews to show what an “ordinary” plea offer should have been did
not involve cases that were prosecuted in Los Angeles County, and were not developed
with a showing of the relative strength and weaknesses of those cases as compared to
Andrews’s case. Andrews’s argument that the three cases were “indicative of the
traditional pattern of settling such cases in the adjacent counties” is an assertion that is
not supported by the underlying showing.
       Finally, even assuming the trial court erred in denying Andrews’s recusal motion,
he cannot prevail on appeal on his claim of recusal error in the absence of a showing that
he was prejudiced by the court’s ruling. (See People v. Vasquez (2006) 39 Cal.4th 47,
67-71 (Vasquez).) Although alerted to the issue of prejudice by the respondent’s brief
filed by the People, Andrew’s reply brief does not address the issue. In short, he has
failed to establish that any error with respect to the District Attorney’s Office’s presence




                                              19
in his case actually prejudiced his case. For this reason, his claim of recusal error must
be rejected.16
II.    The Juror Discharge Claim
       Andrews contends the judgment must be reversed because the trial court erred in
denying his request to discharge a juror during trial. Andrews argues the record shows
that the juror in question was biased in favor of prosecution, and that keeping her on his
case resulted in a violation of his due process right to a fair and impartial jury. We
disagree.
The Trial Setting
       The following exchange took place at the opening of the morning proceedings on
the second day of Antonia’s testimony, before the jury had entered the courtroom. The
prosecutor, Deputy District Attorney Lisa Coen, told the court that it was brought to her
attention after she had returned to her office at the end of the previous court day that a
juror said something to the victim’s father to the effect of “I’m a juror on this case” and
“Gee, I don’t know who to believe,” or “I don’t know what to believe.” The prosecutor
said she did not question the father “because I wanted to just preserve whatever he was
going to say if the court inquired.”
       The prosecutor then added that, although it was “probably trivial . . . in the interest
of full disclosure” she wanted to bring to the court’s attention that when the jury re-
entered the courtroom for the afternoon proceedings on the day before, with the judge
holding open one door and the prosecutor holding open the other door, “a lot of the
jurors” said “thank you,” and one juror, Juror No. 12, said “good job.”

16
       To the extent Andrews argues the denial of his recusal motion resulted in
a violation of his right to due process, we reject any such claim for reasons similar to
those expressed in Vasquez, supra, 39 Cal.4th at pages 58-66. Here, even if we assume
the existence of some measureable quantum of prosecutorial self-interest in Andrews’s
criminal case, the conclusion “[t]hat personal influences on a prosecutor are not always
regarded as creating so substantial a conflict as to deprive the defendant of fundamental
fairness is not surprising.” (Id. at p. 63.) As we discussed above, Andrews has failed to
show any specific prosecutorial actions taken as a result of a conflict that deprived his of
a fundamentally fair proceeding.

                                             20
       The court then stated it recalled personally opening the doors to invite the jurors
in, that Ms. Coen was on the opposite side of the doorway holding open the door, and
“certain comments” were made as the jurors “were filtering in.”
       The victim’s father was called into the courtroom and was questioned by the court
from counsel table. In pertinent part, the father said a juror “came up to me and just
asked me how long court goes for the day, and I said, ‘It could go until 4:00 or 4:30
normally.’ Then he said, ‘This case is kind of weird and I don’t know what to believe.’”
Then the juror walked away. In response to the court’s questioning, the father said he
had been seated down the hallway, not anywhere near the courtroom. The father stated
his impression that the juror was “just making small talk,” and he probably thought the
father was “just someone in the hallway, maybe I work here or something.” The court
then reminded him that he had been seated in the audience in the courtroom. Based on
the father’s description of what the juror was wearing, Juror No. 9 was identified and was
asked to speak to the court, after the father was excused.
       The court told Juror No. 9 it had been brought to the court’s attention that Juror
No. 9 said to someone in the hallway the day before that “the case is kind of weird and
you don’t know who to believe, something to that effect.” The court asked if that
occurred, and Juror No. 9 said “That’s not correct.” Juror No. 9 said he had spoken to a
“detective” briefly, said something like “It’s strange” or “It’s kind of a strange case.”
He adamantly denied saying anything like he didn’t know who or what to believe. When
asked if there was a reason why he chose to talk to that person in particular, Juror No. 9
replied no, except he believed the person was a detective because Juror No. 9 had seen
him in the courtroom. The court began to say “Now, making a statement even saying
‘It’s kind of a strange case’ to --” when Juror No. 9 interrupted to say, “I don’t think I
actually said that but it was something minor. . . like ‘This is kind of different’” or
something like that.” Juror No. 9 stated that he had not expressed any similar concern to
anyone else, including not to any other juror.




                                              21
       After that, over the course of discussions with counsel both before and after the
court questioned Juror No. 12, the court stated five times it did not believe Juror No. 9
was being honest and forthcoming. The court stated it found Juror No. 9 to be
“disingenuous,” which “troubled [the court] immensely.” Further, the court stated that it
believed the victim’s father’s version of what happened and “I did not believe Juror No. 9
at all when he attempted to minimize his conduct.” Finally, the court expressed the view,
“Had he just been forthcoming and admitted, ‘Yeah, I did that and I shouldn’t have,’ he
would still be on this panel.”
       In addition to mistrusting Juror No. 9, the court stated it found Juror No. 9 had
“approached what he thought could be a witness and expressed some opinion about the
case.” The court later explained, “In the juror’s own mind, he was communicating with a
detective on the case . . . which means that, on his own volition, he wanted to express an
opinion to a witness in the case which I think is completely inexcusable.” The court then
excused Juror No. 9, and ordered an alternate juror to replace him. The court then dealt
with an unrelated matter.
       When proceedings resumed, the court took up the matter involving the other juror.
The court stated its view that the comment was “just a comment of a good job.” But the
court deferred to defense counsel and questioned Juror No. 12 outside the presence of
other jurors. The court asked her if when she entered the courtroom the previous day she
had made a statement to Ms. Coen to the effect of “good job” and Juror No. 12 replied,
“Yes, I did.” The court asked her what she meant by that. Juror No. 12 said, “Doing
good, you know.” The court asked “Doing good in the courtroom?” and she replied
“Yeah. Because of the kids and school.” The court asked if she had expressed her view
of Ms. Coen’s performance to any other juror, or anyone else, and Juror No. 12 said “No.
That was only when I was entering.” The court said, “It was in passing, I understand
that,” and the juror replied, “Right.” The court admonished her not to form or express
any opinion about the case, asked if she agreed, and Juror No. 12 said “Yes.”




                                             22
       After Juror No. 12 left the courtroom, the court told counsel its view that Juror No.
12 made a comment to Ms. Coen about her impression of Ms. Coen’s performance in the
courtroom, “nothing else.” The court acknowledged, “It is an expression about an
opinion about the case, not much different from Juror No. 9,” and asked defense counsel
“for her impressions. What do you think we should do?” Defense counsel asked the
court to excuse Juror No. 12, and the prosecutor said “I’ll submit it, your Honor.”
       The court explained it was reluctant to excuse Juror No. 12 based on a comment
about the case made in passing. The court contrasted Juror No. 12 with Juror No. 9, who
“on his own volition, sought out a person, a person that he or she thought was a witness
in the case, and made a statement about the case. This juror was being invited into the
courtroom by court order, quite frankly, and just walked past Ms. Coen and said a
comment in passing ‘good job,’ then continued. Didn’t seek her out.” The court then
made its third comment about Juror No. 9 being “somewhat disingenuous about what he,
indeed, said to [the victim’s father] to the court and that troubles me immensely and that
factored into my decision.” The court found Juror No. 12 in contrast “was forthcoming.
She said, ‘Yes, that’s exactly what I meant by it.’” In contrast with Juror No. 9, the court
found “Juror No. 12 admitted and acknowledged and I see no harm. It certainly is not
going to jeopardize any of the parties of a fair trial.”
The Governing Law
       A defendant in a criminal case has a constitutionally guaranteed right to trial by
impartial jurors. (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16; Irvin v.
Dowd (1961) 366 U.S. 717, 722; In re Hitchings (1993) 6 Cal.4th 97, 110.) An impartial
juror is a person who is “ ‘capable and willing to decide the case solely on the
evidence. . . .’ ” (People v. Nesler (1997) 16 Cal.4th 561, 581, italics omitted, quoting
Smith v. Phillips (1982) 455 U.S. 209, 217.)
       The constitutional right to trial by impartial jurors is protected in part under
section 1089. As relevant, section 1089 provides: “If at any time, whether before or after
the final submission of the case to the jury, a juror . . . upon . . . good cause shown to the
court is found to be unable to perform his or her duty, . . . the court may order the juror to

                                               23
be discharged and draw the name of an alternate, who shall then take a place in the jury
box, and be subject to the same rules and regulations as though the alternate juror had
been selected as one of the original jurors.” A juror who refuses to follow the trial
court’s instructions is “unable to perform his or her duty” within the meaning of section
1089. (People v. Williams (2001) 25 Cal.4th 441, 448.) The decision whether or not to
discharge a juror for good cause shown is a matter for the discretion of the trial court,
and, its decision either way is reviewed for abuse of discretion. (People v. Cleveland
(2001) 25 Cal.4th 466, 474.) The trial court’s discharge decision will be upheld on
appeal unless it falls outside the bounds of reason. (People v. Earp (1999) 20 Cal.4th
826, 892.)
Analysis
       We find the trial court did not abuse its discretion in declining to discharge Juror
No. 12, while discharging Juror No. 9. The trial court at all times was patient, solicited
the views of counsel and responded to their concerns. The court clearly had a strong
sense that Juror No. 9 could not be trusted to fulfill his duty as a juror, and an equally
strong sense that Juror No. 12 could be trusted. Reading a cold transcript, blind and
without the benefit of the myriad nonverbal cues that inform the trial court who observes
firsthand, it could be read into the comment of Juror No. 12 that she had an intent to tell
the prosecutor she was favorably impressed with the prosecution case. But it would seem
odd that Juror No. 12 would do that while entering the courtroom alongside the other
jurors, with the judge standing right there holding open one of the doors. More to the
point, the trial court clearly explained the reasons he did not believe having Juror No. 12
on the case would deprive the parties of a fair trial, and the court’s explanation strikes us
as reasonable. We will not reinterpret what happened.
       A reviewing court must accept the trial court’s credibility determinations and
findings on questions of historical fact in the context of a question about a juror’s ability
to perform his or her duty, and the trial court’s credibility determination is binding on the
appellate court if supported by substantial evidence. (People v. Cleveland, supra, 25
Cal.4th at p. 474.) The trial court heard from both Juror No. 9 and Juror No. 12. Based

                                              24
on the questioning, it found Juror No. 9 should be excused but Juror No. 12 should
remain on the jury. The trial court’s decision not to discharge Juror No. 12 does not rise
to the level of an abuse of discretion because the court satisfied itself, after an appropriate
inquiry, that Juror No. 12 could decide the case solely on the evidence.
III.   The Flight Instruction
       Andrews contends the judgment must be reversed because the trial court erred in
giving the standard instruction pursuant to CALCRIM No. 372 concerning flight after
being accused of committing a crime. He argues the instructional error resulted in a
violation of his constitutional right to due process, and cannot be shown to have been
harmless under the standard of Chapman v. California (1967) 386 U.S. 18. We disagree.
       As given at Andrews’s trial, CALCRIM No. 372 instructed the jury as follows:
“If the defendant fled or tried to flee after he was accused of committing the crime, that
conduct may show that he was aware of his guilt. If you conclude that the defendant fled
or tried to flee, it is up to you to decide the meaning and importance of that conduct.
However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.”
The trial court gave the instruction, over Andrews’s objection, based on its determination
that there was evidence that Andrews left the school upon learning that a deputy was
arriving to interview him about Antonia’s accusations.
       A trial court properly may give a flight instruction “whenever evidence of the
circumstances of defendant’s departure from . . . his usual environs . . . logically permits
an inference that his movement was motivated by guilty knowledge.” (People v. Turner
(1990) 50 Cal.3d 668, 694.) Under the plain language of the instruction, whether a
defendant’s conduct constitutes flight, and the weight to be given to such flight, if found,
are questions for the jury. (People v. Silva (1988) 45 Cal.3d 604, 628.)
       Here, the trial court correctly determined there was sufficient evidence to support
giving the flight instruction. The evidence showed that a deputy spoke to Antonia at her
school on September 28, 2011 about rumors of a sexual relationship between her and
Andrews, and that, immediately thereafter, Antonia telephoned Andrews at Lorbeer and
told him that the deputy was going to Lorbeer. Before the deputy arrived at Lorbeer,

                                              25
Andrews left the school. After leaving, Andrews called his fellow teacher at Lorbeer,
Hutchinson, asking if the police were looking for him. By Andrews’s own testimony, he
drove home and then drove to his uncle’s home in Glendora. This evidence was
sufficient to permit a reasonable inference that Andrews’s act of leaving Lorbeer, and
then leaving his own residence, was for the purpose of avoiding being arrested, thus
supporting the flight instruction. (People v. Bradford (1997) 14 Cal.4th 1005, 1055.)
       Finally, assuming the trial court erred by instructing on flight with CALCRIM no.
372, we would find the error harmless. An instructional error may only result in reversal
if it causes a miscarriage of justice. (Cal. Const., art. VI, § 13.) “[A] ‘miscarriage of
justice’ should be declared only when the court, ‘after an examination of the entire cause,
including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result
more favorable to the appealing party would have been reached in the absence of the
error.” (People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Turner, supra, 50
Cal.3d at p. 695 [applying Watson standard of prejudice to claim of erroneous reading of
CALJIC No. 2.52, the former flight instruction].) The evidence of Andrews’s guilt was
overwhelming when the evidence corroborating Antonia’s testimony is taken into
account. Antonia testified that she and Andrews had a sexual relationship from May
through September 2011, and that they had sexual intercourse on six separate occasions.
Antonia’s testimony was corroborated by testimony from Andrews’s fellow teacher,
Hutchinson, who personally observed a close, unprofessional relationship between
Andrews and Antonia, and by evidence that Andrews reserved hotel rooms and stayed in
the rooms at the time Antonia testified she had sex with him. At the Best Western hotel,
an employee saw Andrews and a young “Asian” female leave Andrews’s room. Andrews
himself admitted that he stayed at both these hotels on these dates. In addition Antonia
kept a contemporaneous journal in which she detailed her sexual encounters with
Andrews. Andrews’s texts, and his comments during a phone call, on September 28,
2011, as detailed above, included comments tantamount to an admission of a sexual
relationship with Antonia. Against this showing, Andrews’s testimony was weak and not
reasonable. His denial of phone sex was refuted by the recorded phone sex on September

                                              26
28, 2011, and his explanation that he was trying to show false accusation by Antonia did
not make sense. We see no probability that the jury’s verdicts might have been different
had a flight instruction not been given, even if the Chapman standard is applied.
IV.   Cumulative Error
      Andrews contends he is entitled to a new trial due to the cumulative effect of the
errors we have addressed above. Because we have found no error, and we have found
any assumed error to be harmless even under the heighted Chapman standard, we find no
basis for granting a new trial based on Andrews’s cumulative error claim.
                                     DISPOSITION
      The judgment is affirmed.




                                                       BIGELOW, P.J.
I concur:




                    GRIMES, J.




                                            27
RUBIN, J. – Concurring


       I agree with the majority’s analysis in Parts I (recusal of the District Attorney’s
office) and III (flight instruction). I also agree with the conclusion in Part II (juror
misconduct) that there was no error. I do have concerns about the proceedings involving
Juror No. 12 only. Before I address those concerns, I step back to put into historical and
jurisprudential context the importance of the issue presented by the asserted misconduct
of Juror No. 12.
       I start with comments by United States Supreme Court Justice Tom Clark, writing
in Irvin v. Dowd (1961) 366 U.S. 717, 722-723:
       “England, from whom the Western World has largely taken its concepts of
individual liberty and of the dignity and worth of every man, has bequeathed to us
safeguards for their preservation, the most priceless of which is that of trial by jury. This
right has become as much American as it was once the most English. . . . In essence, the
right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial,
‘indifferent’ jurors. The failure to accord an accused a fair hearing violates even the
minimal standards of due process. . . . In the ultimate analysis, only the jury can strip a
man of his liberty or his life. In the language of Lord Coke, a juror must be as
‘indifferent as he stands unsworne.’ ”
       The case before us goes to the heart of this right of ours to a jury, a right described
by Justice Clark as “priceless.” The constitutional issue presented in Part II of the
majority opinion is whether defendant was afforded a jury trial by an unbiased jury.
More pointedly, did the remarks that Juror No. 12 made to the prosecutor during a recess
evince a form of bias based on her having prejudged the case? As this very court recently
stated, “if a juror were to make a statement showing he or she had prejudged the case,
that would be a statement of bias, and ‘a statement of bias is misconduct because bias is
misconduct.’ ” (People v. Dokins (2015) 241 Cal.App.4th 1179, 1199.) In such a case,
“if it appears substantially likely that a juror is actually biased, we must set aside the
verdict, no matter how convinced we might be that an unbiased jury would have reached
the same verdict.” (In re Carpenter (1995) 9 Cal.4th 634, 654.)
       To recap the relevant proceedings briefly: On the second day of the victim’s
testimony, the District Attorney advised the court about incidents with two jurors, Nos. 9
and 12. Juror 9 had a brief conversation with the victim’s father in a hall outside the
courtroom, although the juror told the court that she thought the person was a detective.
After a hearing with counsel at which Juror 9 was present and examined, Juror 9 was
excused at the District Attorney’s request and over defendant’s objection.
       The court then turned to the other incident that the District Attorney had reported.
On the previous day, as the jurors were returning to the courtroom following the
afternoon recess, the courtroom doors were being held open by the judge and the
prosecutor respectively. Several jurors thanked the prosecutor, but one said, “Good job.”
That was Juror 12. The judge acknowledge that jurors made comments as they “were
filtering in” the courtroom.
       At a hearing with counsel, outside the presence of the jury and before Juror 12 was
questioned, the court stated that the comment was “just a comment of a good job,” but at
defense counsel’s request, the court brought in Juror 12. The other jurors remained in the
hall. Juror 12 acknowledged she had said “good job” to the prosecutor. Then the court
asked: “Again, my concern is what did you mean by that?” Like ‘good job’ of doing
your court or ‘good job’ opening the door. It could be something harmless like that I
have no idea.”
       Juror 12 did not pick up on the court’s suggestion that it might be a harmless
remark about opening the door. Instead, the following occurred:
       “JUROR 12: No. Doing good, you know.”
       “COURT:       Doing good in the courtroom?”
       “JUROR 12: Yea. Because of the kids and school.”
       “COURT:       Now again, I know that was a harmless comment but technically if
you look at it, it’s a violation of the court’s order not to communicate with any lawyer,
party, or witness about the case no matter what the subject matter or comment is. . . .”

                                             2
The court’s initial comments about the remark being harmless occurred before counsel
had had the opportunity to argue the point.
       The court concluded the hearing shortly afterwards. Defense counsel asked the
court to excuse Juror 12. The District Attorney did not argue one way or the other,
instead resting on the familiar “submit.” Even though the court acknowledged that the
comments by Juror 12 were “not much different from [excused] Juror No. 9,” the trial
court refused to excuse Juror 12. When the trial resumed, the court admonished all the
jurors not to “form or express any opinions about the case” or discuss the case with
anyone.
       The law is well settled that jurors may not discuss the case even among themselves
before they begin deliberations. (People v. Polk (2010) 190 Cal.App.4th 1183, 1201.)
“A violation of that prohibition through discussion with a nonjuror prior to rendering a
verdict is viewed as serious juror misconduct.” (Ibid.) However, the rule prohibiting
such communications is primarily designed to preclude the juror from receiving
information about the case that was not presented at trial. (Id. at pp. 1201-1202.) Here
Juror 12 did not receive any information but instead made a brief comment to the
prosecutor.
       The real question presented by Juror 12’s comment was whether it reflected that
the juror had prejudged the case. Was the inference to be drawn from the remark that the
prosecution was doing really well and going a long way towards protecting “the kids and
school” by making sure this defendant would not be in a position to harm school age
children ever again? In determining whether prejudicial misconduct has occurred, we
afford great discretion to the trial court’s determination. (People v. Bryant (2011)
191 Cal.App.4th 1457, 1457.) Certainly the trial court is in a better position than the
appellate court to judge a juror’s ability to be fair, impartial and to have not prejudged a
case. This is especially so when court has questioned the juror in the presence of counsel.
       On this record I conclude the trial court did not abuse its discretion in concluding
that the juror had not prejudged the case: The comment by Juror 12 was brief, was
apparently intended to be a polite remark, and even “the kids and school” explanation

                                              3
could be reasonably understood as only that it is important to prosecute alleged child
molesters, not that Juror 12 had already prejudged defendant Andrews’ guilt.
       What concerns me the most is that the trial court did not go further in its inquiry
by directly asking Juror 12 whether her comment reflected that she had in fact prejudged
the case, or was leaning one way or the other. In People v. McNeal (1979) 90 Cal.App.3d
830 [McNeal], the Court of Appeal reversed a conviction based on juror misconduct. The
appellate court focused on the nature of the inquiry conducted by the trial court. “[T]he
court’s cursory questioning of Juror Exline did not justify its conclusion that she could
properly perform her duties as a juror.” (Id. at p. 839.) McNeal involved a juror who had
personal knowledge of the facts and had discussed that knowledge with other jurors.
Although McNeal may have involved more egregious facts, the point of McNeal and
other cases is that once the record reveals potential misconduct, the trial court has a duty
to inquire and to inquire fully. (See People v. Burgener (1986) 41 Cal.3d 505, 520-521,
disapproved on another point in People v. Reyes (1998) 19 Cal.4th 743, 756; People v.
Bryant, supra, 191 Cal.App.4th 1457; People v. Castorena, (1996) 47 Cal.App.4th 1051;
People v. Perez (1992) 4 Cal.App.4th 893, 905-906.)
       The final point on the nature of the inquiry concerns defense counsel’s failure to
ask the court to conduct a further inquiry. Although counsel asked the court to excuse
Juror 12, counsel was apparently satisfied with the record of alleged misconduct because
counsel did not ask the court to inquire further or request that counsel be permitted to
question the juror. Given the record as developed and considering the reasonableness of
the trial court’s finding that no prejudicial misconduct had occurred based on that record,
I cannot say that the court erred as matter of law in not asking additional questions.
Nevertheless, I suggest that further questioning, which might have produced express
statements by the juror that she remained fair and impartial and had not prejudged the
case, or the opposite, would have been preferable.




RUBIN, J.

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