The PEOPLE, Plaintiff and Respondent,
v.
Mohammad Ali ABBASZADEH, Defendant and Appellant.
Court of Appeal, Third District.
*874 Eric S. Multhaup, Mill Valley, and Christopher H. Wing for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, John G. McLean and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.[*]
MORRISON, J.
In People v. Mello (2002)
In Mello we assumed this "astonishing" error was a "well-intentioned but misguided" incident. (Mello, supra, 97 Cal. App.4th at pp. 516, 518,
In this case involving an Iranian charged with fraud offenses, tried before we issued Mello, a jury convicted defendant of two counts of grand theft by false pretenses (counts I and III, Pen.Code, §§ 487, subd. (a); 532, subd. (a)) and one count of selling securities by means of false statements (count II, Corp.Code, §§ 25401, 25540). On our own motion we augmented the record to include a transcript of the jury voir dire and ordered supplemental briefing on the effect of Mello.
We conclude Mello error is reversible regardless of the lack of objection in the trial court. Defense counsel's failure to object to a Mello instruction is excused for three reasons: (1) an objection would have been futile; (2) the People are at least equally at fault in allowing the error; and (3) we retain discretion to excuse the lack of an objection and elect to exercise that discretion in defendant's favor because of the shocking nature of the error which rendered the trial unfair.
Because defendant challenges the sufficiency of the evidence on some counts, and success on these claims would bar a retrial *875 (Burks v. United States (1978)
I. Mello error.
A. Mello.
In Mello, we explained that the Judicial Council had issued guidelines for trial judges to use to inquire into racial bias during jury voir dire, and that in 1997 the California Supreme Court issued a decision instructing trial judges to follow those guidelines. (Mello, supra,
"Unfortunately, Judge O'Flaherty did not heed the high court's admonition" and over objection "he instructed prospective jurors that, if they harbored racial bias against defendant, they should lie about it under oath and make up other reasons to be excused. Simply stated, this is astonishing." (Mello, supra,
"[T]he instructions irremediably tainted the trial by making it impossible for the parties to know whether a fair and impartial jury had been seated." (Mello, supra,
We concluded: "We cannot assess whether the erroneous instructions to lie under oath during voir dire were harmless `in the context of the evidence presented,' as the People urge. In addition to the general difficulty of assessing an irregularity in the selection of a jury, the error in this case, by its very nature, tended to distort the record. In short, we cannot confidently review the answers that prospective jurors gave during voir dire because they were told to lie. [¶] Accordingly, we conclude that the instructions to lie about racial bias resulted in voir dire so inadequate as to render the trial fundamentally unfair. [Citation.] This error which inevitably skewed the integrity of *876 the entire voir dire process and adversely affected the manner in which the jurors would evaluate the evidenceis a `defect affecting the framework within which the trial proceeds' that is not subject to harmless error analysis. [Citations.] [¶] Therefore, defendant is entitled to a new trial." (Mello, supra,
B. The error in this case.
Judge O'Flaherty did not use the word "lie" in this case, as he did in Mello, but he invited the jury to he using other language, in the italicized portion of this passage:
"Now, you probably all know that race and nationality have no place in this courtroom. The very integrity of the system that has developed in the last several generations depends on that we keep this social problem at least out of the courtroom.
"Now, obviously being labeled a bigot or a racist, this sort of thing, is insulting to most people. And so it's entirely possible that if you harbor these types of feelings that you may not want to raise your hand and basically put a sign on yourself saying: I am a racist, et cetera. "I don't want somebody who harbors those types of feelings sitting on this jury, for obvious reasons.
"So I would ask that you do whatever you have to do to get off the jury. And it's much more important, in my opinion, that you get off the jury, even if, you know, you have to answer my questions in such a way that you get off in some other way, then do it. [¶] Does everybody understand that?" (Italics added.)
We think the venire indeed understood that Judge O'Flaherty was inviting prospective jurors to do "whatever" was necessary to get off the jury "even if ... you have to answer my questions in such a way" as to get off other than by admitting to harboring racist feelings, i.e., to lie. The Attorney General does not contest the fact that Judge O'Flaherty committed Mello error in this case.
After giving the above instruction, Judge O'Flaherty asked if anybody was prejudiced, and later the defense attorney asked whether anybody had feelings about Iranians or Persians. No juror said that he or she was prejudiced.
Later one prospective juror admitted being "a little bit" prejudiced and he was immediately excused.
Another juror, who was seated at trial "wonder[ed] if there is going to be heavy accents. I have trouble sometimes understanding people who have a heavy accent." Judge O'Flaherty asked defense counsel if defendant had a heavy accent and then told the juror he would expect the juror "to immediately raise your hand" if he had trouble following the evidence at trial, and the juror agreed he could then be fair. Quite possibly this juror tried to comply with the Mello instruction, only to be thwarted. That we cannot know illustrates why Mello error is structural: It renders all further proceedings unreliable. "[T]he instructions irremediably tainted the trial by making it impossible for the parties to know whether a fair and impartial jury had been seated." (Mello, supra,
Defense counsel suggests the error is more acute in this case because part of defendant's business involved carpet sales, and some people harbor a "rug peddler" stereotype about Iranians and other Middle Easterners. (See, e.g., Boutros v. Canton Regional Transit Authority (6th Cir.1993)
C. The error is not waived.
The People rest their case on the waiver doctrine. We conclude that doctrine does not apply to this case.
The People cite four California Supreme Court cases holding various claims about voir dire questions were waived for lack of objection in the trial court. (People v. Seaton (2001)
We agree that most errors in voir dire must be brought to the attention of the trial court or they will be deemed waived on appeal. This follows from the rule that we presume jurors can "unring the bell" and follow admonishments and instructions designed to cure a trial court error. (People v. Seiterle (1963)
We disagree the waiver rule applies in this case for three reasons: (1) an objection would have been futile; (2) the People are at least equally at fault in allowing the error; and (3) we retain discretion to excuse the lack of an objection and elect to exercise that discretion in defendant's favor because of the shocking nature of the error which rendered the trial unfair.
First, there is a general exception to the waiver rule, applicable equally to judicial misconduct, where an objection would have been futile. (People v. Hill (1998)
*878 Second, Judge O'Flaherty's instruction amounted to an order that jurors commit criminal violations of the law by breaking their oath. (Mello, supra,
Third, "[t]he fact that a party, by failing to raise an issue below, may forfeit the right to raise the issue on appeal does not mean that an appellate court is precluded from considering the issue." (6 Witkin & Epstein, supra, § 36, p. 497.) Generally, whether or not an appellate court should excuse the lack of a trial court objection "is entrusted to its discretion." (People v. Williams (1998)
Defendant also contends the lack of objection is irrelevant because of Penal Code section 1259, which provides in relevant part that an "appellate court may .. review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." (Italics added.) This statute has been used to excuse objections *879 to substantive instructions, such as definitions of crimes and defenses and instructions about the permissible and impermissible uses of evidence. (E.g. People v. Smithey (1999)
D. Other matters.
Because of the nature of the error and the notoriety of Judge O'Flaherty's conduct, the interests of justice require that defendant be retried before a different judge, to avoid any implication of bias. (Code Civ. Proc, § 170.1, subd. (c).)
Although in Mello we tempered our opinion by calling Judge O'Flaherty's conduct "well-intentioned but misguided" (Mello, supra,
II. Other Issues.[**]
DISPOSITION
The judgment (order granting probation) is reversed and the cause is remanded with directions to the trial court to reassign this case to a new judge. (Code Civ. Proc., § 170.1, subd. (c).) The clerk is directed to forward a copy of this opinion to the Commission on Judicial Performance for whatever action that body deems to be appropriate in the circumstances.
I concur: NICHOLSON, J.
Concurring and Dissenting opinion of SIMS, J.
I concur in the unpublished portion of the majority opinion, where the majority concludes that various of defendant's contentions of prejudicial error are not meritorious.
I also concur in the majority's conclusion that voir dire was improper and in the majority's decision to report Judge O'Flaherty's conduct to the Commission on Judicial Performance.
However, I respectfully dissent from the reversal of the judgment. In my view, defendant has forfeited his right to complain of Judge O'Flaherty's improper voir dire because trial counsel failed to object in the trial court.
Our Supreme Court has uniformly held that, in order to preserve a problem with voir dire on appeal, a defendant must have objected to the improper voir dire in the trial court. (People v. Seaton (2001)
In People v. Mello (2002)
The reasons for requiring an objection in the trial court have been described as follows: "`An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method.... The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver.... Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.' [Citation.]" (Doers v. Golden Gate Bridge Etc. Dist. (1979)
Moreover, "`[i]t would seem ... intolerable to permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.' [Citation.]" (Porter v. Golden Eagle Ins. Co. (1996)
In this case, defendant does not claim that trial counsel was ineffective for failing to object. In any event, trial counsel may well have chosen not to object because he thought Judge O'Flaherty's technique would effectively purge the jury of ethnically prejudiced jurors or because he liked the jurors then in the box.
The majority refuse to apply the waiver rule for three reasons, none of which I agree with.
First, the majority say an objection would have been futile. However, I do not agree that an objection would have been futile because Judge O'Flaherty, in fact, overruled the objections to his jury voir dire technique in People v. Mello, supra,
Second, the majority excuse the need for an objection because the prosecutor, a Deputy Attorney General, did not object. But this trial was not some tennis match between defense counsel and the prosecutor. Rather, it was a truth-finding process in which the trial court itself (and the taxpayers) had a strong interest in seeing to it that this trial would not have to be done twice. (See, e.g., People v. Saunders, supra,
Third, the majority rightly state that this court has discretion to consider the claim even in the absence of an objection. They are correct on the law, but I would *881 not exercise that discretion here, where the result is consummate sandbagging.
The defendant argues that Judge O'Flaherty's admonition to the jury is reviewable without an objection because Penal Code sections 1259 and 1469 allow review of a jury instruction, without an objection, where the substantial rights of the defendant are affected. However, the judge's comment to the jury during voir dire was not the sort of instruction on the law that Penal Code sections 1259 and 1469 contemplate. (See People v. Seaton, supra,
Because defendant never objected to the voir dire procedure in the trial court, his claim on appeal should be held forfeited. Unfortunately, the majority's ruling permits trial counsel the unfair tactical advantage of "`permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.' [Citation.]" (Porter v. Golden Eagle Ins. Co., supra,
For the foregoing reasons, I would affirm the judgment.
NOTES
Notes
[*] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of part II.
[**] See footnote *, ante.