People v. YoungPeople v. Young
Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Xavier Becerra, Attorneys General, Gerald A. Engler, Michael P. Farrell, Assistant Attorneys General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to
On appeal, defendant contends: (1) we must reverse the judgment because the trial court lacked good cause to excuse one of the sitting jurors (Juror No. 4) and doing so in the absence of both defendant and his assigned trial counsel violated defendant‘s constitutional rights; (2) defendant‘s convictions for Counts 3 and 6 must also be reversed for insufficient evidence; (3) defendant‘s Count 6 conviction must be vacated because
We conclude the trial court did not have good cause to excuse Juror No. 4. We also conclude doing so outside defendant‘s presence and while he was represented by an attorney who was standing in for defendant‘s temporarily ill trial counsel, and who was told she was appearing to agree to a continuance on defendant‘s behalf, violated defendant‘s federal constitutional rights. Because we cannot conclude this error was harmless beyond a reasonable doubt, we must reverse the judgment. This conclusion makes it unnecessary to address defendant‘s remaining claims except those challenging the sufficiency of the evidence. As to those, we conclude sufficient substantial evidence supports defendant‘s conviction in Count 3. Not so with respect to Count 6. We must therefore reverse the judgment on that count for insufficient evidence.
FACTS
Defendant and his family, consisting of his wife and daughters A. and H., moved from Texas to Hornbrook, a rural community not far from the Oregon border, sometime in May 2013. They initially stayed in a small house with defendant‘s father and stepmother. In July or August, the family moved into a house located on a piece of property managed by a friend of defendant‘s wife. This friend also lived on the property, in a separate house, with her husband and their four children, including their five-year-old daughter M. A. and H. were four years old and three years old, respectively.
Sexual Abuse of A. and H.
Defendant‘s sexual abuse of his daughters came to light during the third weekend of August 2013. At some point that weekend, M.‘s mother discovered from talking to her daughter that A. had tried to put her finger in M.‘s vagina while the two were picking blackberries together. On two prior occasions, A. had tried to hold M. down and kiss her.
M.‘s mother then had a private conversation with A. while they played with M.‘s hamster. When asked about the incident, A. “got a shy look on her face,” but then admitted to trying to put her finger in M.‘s vagina. M.‘s mother told A. several times that she was not in trouble and asked how she knew something could go into a vagina, using the word “pee-pee” for vagina because that was the word the children used for it. A. responded, “Daddy taught me” and added: “This is how we show we love each other.” As M.‘s mother explained her reaction: “I tried really hard to keep a straight face for that little baby. Everything in me as a mom wanted to just explode and freak out.” Instead, she calmly asked for more details. A. said it was “not okay to tell because [defendant] might kill Mommy.” After multiple assurances that “it was okay to tell the truth,” A. revealed defendant played “games” with her while her mom was at work, including defendant touching and putting things into her vagina and making her touch and kiss his penis. In the conversation, A. used the word “pee-pee” for both vagina and penis. A. also said defendant did these things to her when they lived in Texas and continued to do so in California, both at her grandfather‘s house and at their new house.
After speaking to A., M.‘s mother spoke to H. to find out whether defendant was also abusing her. After telling H. it was okay to tell the truth, M.‘s mother said A. had told her “about the games that [they] play with Daddy,” without saying what these games were. H. initially avoided eye contact and remained quiet, but eventually said they played “pee-pee kissing games” because “that‘s what Daddy likes to do when [M]ommy is not home.” H. also confirmed defendant did these things when they lived in Texas and at their new house in California.
M.‘s mother reported these disclosures to defendant‘s wife, who “flipped out,” going from “sobbing and crying” to “screaming angry.” At some point, defendant‘s wife
M.‘s mother and defendant‘s wife decided to call the Siskiyou County Sheriff‘s Department and Child Protective Services (CPS) to report the abuse. M.‘s mother made the call because defendant‘s wife “was physically ill at that point.” Defendant moved out after his wife confronted him with the allegations.
A social worker from CPS, Angeline Brophy, came out to the house to interview A. and H. the following week. The purpose of these initial interviews was not to document the abuse in detail, but to determine whether or not to refer the matter to law enforcement authorities. Brophy spоke with A. first. After establishing A. knew the difference between the truth and a lie through introductory questions, Brophy asked her who lived at the house. When A. got to defendant, she added: “But he is naughty.” Brophy asked what she meant. A. responded, “My dad is naughty because he puts sticks and stuff in my pee-pee,” pointing to her vagina. Brophy asked when the last time something like that happened. A. said defendant put a carrot in her vagina at their house in Hornbrook, he told her not to tell anyone, and she was afraid of him. Brophy also asked about the incident with M., but A. denied touching her vagina. She also denied
Brophy then interviewed H. After establishing she knew the difference between the truth and a lie, Brophy also asked her who lived at the house. When H. got to defendant, she said: “My dad touches my pee-pee with his fingers.” She also pointed to her vagina to indicate that is what she meant by “pee-pee.” After establishing H. knew the difference between inside and outside, Brophy asked whether defendant put his fingers inside her vagina. H. said he did. She also revealed that he put a carrot inside her vagina. When asked how many times he did that, H. responded: “A lot. More than five times.” She said the last time defendant put his fingers in her vagina was at the recreational pool in Hornbrook. Defendant told her not to tell anyone about the carrots. Finally, H. said defendant put his penis on her eye, but denied he put his mouth on her vagina or had her put her mouth on his penis. Again, because Brophy had enough information to refer the matter to law enforcement, she ended the interview without getting additional details.
Brophy referred the matter to law enforcement the first week of September. The following week, Detective Jacques Morlet went out to the house to conduct follow-up interviews with A. and H. The detective spoke to A. first. When he asked her if she knew why he wanted to talk to her, A. said: “Because Daddy‘s a bad, bad man.” After establishing A. knew the difference between the truth and a lie, much like Brophy had done, the detective asked whether defendant did anything to her that he told her not to tell anyone. A. responded: “He, um, messed with me.” When the detective asked how defendant messed with her, A. said he made her eat an apple when she did not want to and also made her touch a flower. The detective then established A. knew what her “private parts” were and “the difference between a good touch and a bad touch” and
About two weeks later, Brophy conducted a forensic interview with H. During the interview, H. said hеr father was “mean” because he “put carrots . . . and all that stuff in [her] pee-pee” at the house in Hornbrook. When Brophy asked what else defendant put inside her vagina, H. pointed to various stuffed animals and other items in the interview room and said: “He put that. Not that. That and that and that and that. He put all the stuff in my pee-pee.” She then directed Brophy: “So write it.” When Brophy asked whether she had seen defendant‘s “pee-pee,” H. said: “He put it together to my pee-pee.” Brophy then established H. knew the difference between inside and outside and asked: “Did your daddy put his pee-pee inside your pee-pee or outside your pee-pee?” H. answered: “Inside my pee-pee.” Brophy asked what happened then, to which H. responded: “He put the teddy bear in my pee-pee too.” She again directed: “Write that.” Brophy asked whether defendant ever put his mouth on her vagina. H. answered: “Yes. And inside his pee-pee and inside my pee-pee.” Brophy also asked whether defendant ever had her touch his penis. H. answered: “He want me to touch, hе touched my pee-pee and I touched his pee-pee.” When Brophy asked what defendant‘s penis looked like, H. said it looked like a “cracker” and pointed to a Nutter Butter cookie that was on a table in the interview room. Brophy asked how many times defendant touched H.‘s vagina. She responded: “Um, five times, like three times.” When Brophy asked whether A. was
At this point in the interview, Brophy brought out some anatomical drawings of a girl and a man and had H. identify the various parts and point out where defendant touched her and where she touched him. Brophy then asked whether anything happened at the pool. H. said defendant “put his pee-pee on the ground and he touched [her] pee-pee” during a pool party. Brophy asked: “How did your daddy get his pee-pee into your pee-pee in the pool?” H. answered: “Like he put inside his finger in my pee-pee like this.” Brophy then asked: “Did he put his pee-pee in your pee-pee in the pool?” H. answered: “Yes.” After stepping outside to talk to Detective Morlet, Brophy returned and had H. color on the drawings to represent the various places defendant touched her and had her touch him.
A. and H. testified at trial, although H. refused to answer any questions relating to the abuse, repeating, “I don‘t want to talk about it” and, “I don‘t want to say it” several times. She also stated there was someone in the courtroom she was afraid of, identifying that person as “a boy,” but providing no further details. A. did provide testimony regarding the abuse. She testified defendant touched her on her “pee-pee” and her “butt,” identifying her vagina and buttocks on anatomical drawings shown to her on the witness stand. She testified defendant touched her vagina with his hands and finger on one occasion at the house in Hornbrook and did so on other occasions when they lived in Texas. Defendant also touched her buttocks twice at the house in Hornbrook. A. also testified defendant put carrots inside her vagina on two occasions at this same house.
During the second week of September, two days after Detective Morlet interviewed A., M. revealed to her mother that defendant also put his finger inside her vagina on one occasion. M.‘s mother testified: “She told me that [defendant] had -- the girls were over there playing at their rental on my property, and they were all running around in bathing suits, like every day, and that he was on his computer, and that she ran in that room to ask him something and that he put his finger underneath her bathing suit on her pee-pee, and that she got scared and tried to pull away and said, ‘I want my Mommy.’ And he said, ‘You can‘t go tell your mommy, you can‘t tell anybody, you can‘t go over. You need to go play with the girls right now.’ ” When M.‘s mother asked her daughter where defendant put his finger, M. put her finger “onto her pee-pee, right in her labia.” M. did not say when this occurred. M.‘s mother estimated it must have happened during the “middle to the third week” of August, based on when M. wоuld have been over there playing with her friends.
M.‘s mother reported the incident to Detective Morlet, who came out to her house with Brophy two days later to conduct an interview with M. Brophy tried to interview M. in private, but she refused, so the interview took place in the living room with M. sitting on the couch with her parents and Brophy sitting on the floor facing the child. During the interview, after establishing M. knew the difference between the truth and a lie, Brophy asked whether there was a time M. “got in trouble” while she was over at defendant‘s house playing with her friends. M. responded: “I did.” When Brophy asked why she got in trouble, M. apparently looked up at her mother, prompting her mother to say: “I don‘t know why hunny. Just tell her what happened.” M. then pointed to her vagina. Brophy asked what she called that part of the body. M. answered: “Our pee-pee.” Brophy then asked what happened to her pee-pee. M. responded, “He did this,” grabbing her vaginal area with one hand and lifting upwards. In response to
M. also testified at trial. She testified defendant touched her “pee-pee” and “butt” on the outside of her bathing suit. She claimed to not remember what he touched her with, but said it happened on one occasion while she was over at his house playing with A. and H. According to M.‘s testimony, she immediately ran home and told her mother what defendant had done.
DISCUSSION
I
Removal of Juror No. 4
Defendant contends we must reverse the judgment because the trial court lacked good cause to excuse Juror No. 4 and doing so in the absence of both defendant and his assigned trial counsel violated defendant‘s constitutional rights. We agree.
A.
Additional Background
The prosecution‘s presentation of its case against defendant was set to begin on Monday, June 16, 2014, the jury (including the alternates) having previously been selected and sworn. The trial court went on the record at 8:30 a.m., prior to the arrival of the jury, to note neither defendant nor his defense counsel, Barton, was present. Barton was apparently ill and informally agreed with the prosecutor that the matter would be continued until the following day and therefore defendant need not be brought over to court. Explaining it was not up to the attorneys and custodial staff to decide whether the matter would be continued and whether defendant‘s presence would be necessary, the trial court ordered defendant brought over and also ordered the presence of someone from the Public Defender‘s Office to stand in for Barton.
At 9:00 a.m., before the jury was brought into the courtroom, the trial court stated on the record that two of the jurors were not present and explained: “So I have directed my clerk to go ahead and contact them. There is some roadwork in some of the areas, and I know for a hearing that I had last week it was almost a 45-minute delay for people to get in, but I don‘t know if that‘s what‘s going on, but I‘ll have her contact them.” At 9:15 a.m., the trial court went back on the record and stated one of the missing jurors, Juror No. 12, was admitted to the hospital the previous Friday and had major bypass surgery, so Juror No. 12 would be excused and replaced with an alternate. With respect to the other missing juror, the trial court stated: “I have also -- we have been trying to contact [Juror No. 4], . . . and I think at this point it‘s 9:15, Counsel. And I‘m going to have my bailiff check one more time to see if [Juror No. 4] is present. But if that juror is not present, I think the best course of action would be to go ahead and excuse that juror, because that juror did not come in. We don‘t know why, we have not heard.”
The jury was then brought into the courtroom. Juror No. 4 was still not present. As promised, the jury was informed there would be no proceedings that day because of “unexpected issues” and ordered to return the following day. The trial court then removed Jurors No. 12 and No. 4, replacing them with alternate Jurors No. 1 and No. 2,
B.
Forfeiture
As a preliminary matter, the Attorney General asserts defendant‘s challenge to Juror No. 4‘s removal is forfeited by his failure to object below. Had defendant been present with his assigned counsel, Barton, when the removal occurred, this assertion would undoubtedly have merit. (See People v. Wilson (2008) 43 Cal.4th 1, 25 [failure to object to juror removal or move for mistrial forfeits claim of error on appeal].) However, as previously mentioned, neither defendant nor Barton was present to object to Juror No. 4‘s removal. There is no indication in the record that stand-in сounsel, O‘Connor, had any familiarity with defendant‘s case or with the selection of defendant‘s jury. Her presence the morning of the challenged removal was explicitly for purposes of representing defendant while the jury was informed the matter would be continued to the following day. As we explain later in this opinion, her presence when Juror No. 4 was removed was tantamount to having no representation at all. In these circumstances, we cannot hold her failure to object to the removal against defendant.
However, as the Attorney General also points out, Barton did not object to the removal when she returned the following day. Thus, we are faced with the more difficult question of whether or not this failure should operate to forfeit defendant‘s claim on appeal.
In People v. Davidian (1937) 20 Cal.App.2d 720 (Davidian), a juror was removed and an alternate substituted in her place. Defense counsel did not object at the time of the removal. The following day, counsel declined to stipulate that “the jury is present,”
Based on thesе authorities, Barton might well have concluded it was too late to object to the removal of Juror No. 4 after the removal had already taken place and the trial court would have had no basis upon which to grant such a motion. In short, there was reason for Barton to conclude an objection to the removal at that time would have been futile in the sense the erroneous removal of the juror could not have been remedied. (See People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648 [exception to forfeiture rule where objection would have been futile].) Moreover, even though Barton could have raised the issue in a motion for new trial, as the defendant did in Von Badenthal, nothing in that case suggests the failure to do so operates as a forfeiture of the issue on appeal. It is the failure to object at the time of the removal that forfeits the issue. (Davidian, supra,
In any event, the fact that a party may forfeit a right to present a claim of error to the appellate court if he or she did not raise the issue in the trial court does not mean the appellate court is deprived of authority to reach the merits of the issue. “An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party. [Citations.] Indeed, it has the authority to do so. [Citation.] True, it is in fact barred when the issue involves the admission (
C.
Section 1089
” ‘Once a trial court is put on notice that good cause to discharge a juror may exist, it is the court‘s duty “to make whatever inquiry is reasonably necessary” to determine whether the juror should be discharged.’ [Citation.] On appeal, the trial court‘s determination is reviewed for abuse of discretion. [Citations.]” (People v. Leonard (2007) 40 Cal.4th 1370, 1409.) However, “[w]hile the court‘s decision will be given great deference, its discretion is not unfettered.” (People v. Bell (1998) 61 Cal.App.4th 282, 287 (Bell).) “The court must make a reasonable inquiry to determine whether the person in question is able to perform the duties of a juror. [Citation.] If the answer is in the negative, the inability to perform those duties must be shown on the record to be a ‘demonstrable reality.’ [Citation.]” (Ibid.)
Here, Juror No. 4 was removed for being absent about 15 minutes after he was scheduled to report for the start of the evidence portion of the trial. As the trial court acknowledged on the record, he might have been stuck in traffic due to roadwork in the area. Or, as the Attorney General posits, he might have been “shirking his duties and evading jury service.” The record does not reveal which of these scenarios, if either, was the actual situation. As our Supreme Court has stated: “Unless the facts clearly establish a sufficient basis on which to reach an informed and intelligent decision, the court must conduct an appropriate hearing in the presence of litigants and counsel on the question of the juror‘s ability to servе.” (In re Mendes (1979) 23 Cal.3d 847, 852 (Mendes), superseded by statute on another point, as stated in People v. Cottle (2006) 39 Cal.4th 246, 254, fn. 2.) The trial court did not conduct such a hearing. Instead, outside defendant‘s presence and while he was being represented by stand-in counsel, the trial
Nevertheless, the Attorney General argues the trial court did make an inquiry into Juror No. 4‘s whereabouts and the lack of information in this regard “was not for lack of trying,” pointing out the court clerk was apparently unable to reach the juror by phone and the bailiff checked the juror waiting area to see if he had arrived prior to his removal. However, under Mendes, supra, 23 Cal.3d 847, when this preliminary inquiry neither confirmed the juror was on his way nor clearly established he was unable to serve as a juror, the trial court was required to hold a hearing in the presence of defendant and counsel. This did not happen.
The Attorney General also cites Bell, supra, 61 Cal.App.4th at page 289, for the proposition that “one ‘cannot reasonably expect the court system to be placed in “park” in the hope that an ostensibly favorable juror will return at some future time.’ ” Bell is inapposite. There, the removed juror called the clerk the morning of the second day of evidence and stated he needed to take his son to the hospital following an undisclosed emergency and he did not believe he could be back before 1:30 p.m. (Id. at p. 287.) After holding “a short conference, with [defendant] and both counsel present,” during which argument from both sides was entertained, the trial court removed the juror “in the interest of judicial economy,” noting, “the juror did not know exactly when he could return,” and “the trial was almost over and the other jurors, alternates, and witnesses were being kept waiting.” (Id. at p. 288.) The Court of Appeal concluded this was not an abuse of discretion, explaining: “The court made a reasonable inquiry into good cause through its phone contact with juror No. 2 and the conference with the parties. The court
In contrast, here, the trial court had no information as to whether Juror No. 4 would arrive in a matter of minutes due to traffic delays, or whether he was absent for some other more serious reason. Nor did the trial court hold the conference that was held in Bell, supra, 61 Cal.App.4th 282, with defendant and counsel present, in an attempt to make an informed decision on the matter. Moreover, even if Juror No. 4 was unable to serve as a juror for the entire day, like the juror in Bell, the trial in this case was being continued for a day anyway due to defense counsel‘s illness. Thus, there were no waiting jurors or witnesses making judicial efficiency a consideration here. The trial court could have removed and replaced Juror No. 12, for whom good cause for removal was abundantly clear, and excused the jury for the day. If Juror No. 4 was merely running late, he could have been admonished for his tardiness upon his arrival and also ordered to return the following day. If he never arrived, that could have been addressed in a hearing the following day, with defendant and counsel present, or if his inability to serve as a juror was clearly established in the meantime, the trial court could then have removed him without holding such a hearing. (See Mendes, supra, 23 Cal.3d at p. 852.)
We recognize an exercise of discretion “is not rendered abusive merely because other alternative courses of action may have been available to the trial judge.” (People v. Hall (1979) 95 Cal.App.3d 299, 307.) However, here, the course of action chosen by the
D.
Constitutional Claim
We now address defendant‘s contention that, in addition to amounting to an abuse of discretion, the trial court‘s decision to discharge Juror No. 4 in these circumstances violated defendant‘s constitutional rights “to be personally present and to be represented by counsel at critical stages during the prosecution.” (United States v. Thompson (9th Cir. 1987) 827 F.2d 1254, 1258 (Thompson).)
“[A] criminal defendant has a right to be personally present at certain pretrial proceedings and at trial under various provisions of law, including the confrontation clause of the Sixth Amendment to the United States Constitution, the due process clause of the Fourteenth Amendment to the United States Constitution, section 15 of article I of the California Constitution, and
While these rights to personal presence and assistance of counsel at all critical stages of the proceedings obviously overlap, they are not coextensive. For example, “a defendant may ordinarily be excluded from conferences on questions of law, even if those questions are critical to the outcome of the case, because the defendant‘s presence would not contribute to the fairness of the proceeding.” (People v. Perry (2006) 38 Cal.4th 302, 312.) In Kelly, supra, 42 Cal.4th 763, our Supreme Court held the defendant‘s right to personal presence was not violated when he was excluded from certain legal discussions during jury selection regarding the removal of three prospective jurors, noting defense counsel was present during these discussions and nothing in the record suggested the defendant‘s presence would have made any difference. (Id. at pp. 781-782.) In contrast, in Ayala, supra, 24 Cal.4th 243, our Supreme Court held it was state law error to exclude both the defendant and defense counsel from a hearing on the defendant‘s Wheeler motion2 regarding the prosecution‘s exercise of peremptory challenges against certain prospective jurors and noted the error “may amount to a denial of due process,” but concluded the error was harmless under both the state and federal standards for assessing prejudice. (Id. at p. 264, italics added; see Thompson, supra, 827 F.2d at p. 1261 [exclusion of defense counsel from Batson hearing violated due process and was not harmless].) The “obvious difference between excluding both the defendant and his [or her] attorney and merely excluding the defendant” from conferences on
Here, both defendant and Barton were excluded from the removal decision. And, as we explain, O‘Connor‘s presence was tantamount to no representation at all. Thus, we must determine whether or not the juror substitution that occurred in this case amounted to a critical stage of the proceedings against defendant entitling him to the assistance of counsel during the substitution. Because we conclude the answer is “yes,” we need not determine whether his personаl presence was also constitutionally required, or whether instead such presence ” ‘would be useless, or the benefit but a shadow.’ ” (Kentucky v. Stincer, supra, 482 U.S. at p. 745.)
We first note a juror substitution is not “necessarily . . . a critical stage in the proceedings such that it gives the defendant the constitutional right to assistance of counsel.” (People v. Dell (1991) 232 Cal.App.3d 248, 257 (Dell).) This observation flows by implication from Mendes, supra, 23 Cal.3d 847, in which our Supreme Court held that “[u]nless the facts clearly establish a sufficient basis on which to reach an informed and intelligent decision, the court must conduct an appropriate hearing in the presence of litigants and counsel on the question of the juror‘s ability to serve.” (Id. at p. 852.) Conversely, if the facts do clearly establish a sufficient basis for removing a juror, that removal may happen outside the presence of both the defendant and defense counsel. (See, e.g., Dell, supra, 232 Cal.App.3d at p. 257 [“we do not see how counsel‘s presence at the substitution could have made a difference“].)
However, in a situation such as existed in this case, where the removed juror‘s inability to serve is not clear, the presence of counsel could make all the difference. If the trial court‘s reasons for removing the juror are legаlly insufficient to establish good cause for removal, or the record does not show the juror‘s inability to serve to be a demonstrable reality, arguments can be made and the decision to remove that juror
While defendant was represented by O‘Connor when Juror No. 4 was removed, we agree with defendant she “did not function as the ‘counsel’ contemplated by the сonstitutional guarantee.” (Wilson v. State (Fl.Dist.Ct.App. 2000) 764 So.2d 813, 816.) O‘Connor was not defendant‘s assigned counsel and apparently had no prior knowledge of defendant‘s case. She was standing in for Barton for the express purpose of agreeing to a one-day continuance and having the jury informed of that fact. She made no objection when the trial court announced it would also be removing Juror No. 4, essentially for tardiness, without any information as to whether he was unable to perform his duties as a juror or simply stuck in traffic due to roadwork in the area. While O‘Connor was “a warm body sitting in counsel‘s chair,” she was not there to represent defendant for any purpose other than agreeing to a continuance. (Ibid.)
We therefore conclude defendant‘s constitutional right to be represented by counsel at critical stages during the prosecution was violated. (See, e.g., Thompson, supra, 827 F.2d at p. 1258; Dunn v. State (2011) 308 Ga.App. 103, 105-106 [removal of juror without good cause outside presence of the defendant and defense counsel violated the defendant‘s constitutional rights].)
Prejudice
We now turn to the question of prejudice. In Rushen v. Spain (1983) 464 U.S. 114 (Rushen), a case involving two ex parte conversations between the trial court and one of the jurors regarding whether that juror should be removed because of a possible bias, the United States Supreme Court assumed for purposes of the opinion that the defendant‘s “constitutional rights to presence and counsel were implicated” by these ex parte conversations with the juror, as the California Court of Appeal concluded on direct appeal, and as the federal district court and the United States Court of Appeals for the Ninth Circuit concluded in federal habeas proceedings (id. at p. 117 & fn.2), but unlike the Ninth Circuit (and like the California Court of Appeal), the high court held such a violation was subject to a harmless error analysis rather than being prejudicial per se. (Id. at pp. 117-120.) There, evidence of a murder that was not related to the crimes for which the defendant (and several co-defendants) were being tried came out during trial, causing the juror to realize she knew that murder victim and prompting her to reveal this to the trial judge in the two ex parte conversations. (Id. at p. 116.) Describing the conversations as “innocuous,” the high court concluded the lower federal courts should have deferred to the “presumptively correct state court finding” that holding these conversations outside the presence of defendant and defense counsel was harmless beyond a reasonable doubt. (Id. at pp. 120-121.)
We cannot conclude beyond a reasonable doubt the removal of Juror No. 4 in this case was harmless. Unlike Rushen, supra, 464 U.S. 114, where there did not appear to have been any good cause for removal of the juror, and therefore the presence of defendant and defense counsel likely would not have made a difference with respect to the trial court‘s decision not to remove her, here, Juror No. 4 was removed from the jury without a showing of good cause and the presence of defendant‘s assigned counsel, or at
Nevertheless, relying on Dell, supra, 232 Cal.App.3d 248, the Attorney General argues defendant could not have been prejudiced by the removal because Juror No. 4 was replaced by an alternate, who was “selected from the same source, in the same manner, with the same qualifications and . . . subject to the same challenges,” and who had “an equal opportunity to observe the entire proceedings and [took] the same oath as the regular jurors.” (Id. at p. 256.) However, as previously explained, Dell involved the removal of a juror where good cause for that removal was clear, and therefore, the removal of that juror outside the presence of the defendant and defense counsel did not amount to an abuse of discretion, let alone a constitutional violation. Accordingly, Dell is manifestly inapposite.
In sum, defendant was entitled to have Juror No. 4 on the jury, at least until his inability to serve appeared as a demonstrable reality. The improper removal of that juror without good cause outside the presence of defendant and counsel prepared to represent his interests in the removal matter violated his constitutional right to be represented by counsel at critical stages during the prosecution. Thus, unless we can conclude beyond a reasonable doubt that the replacеment of this juror did not contribute to the verdict rendered against him, we must reverse. We simply do not know what the jury would have done had Juror No. 4 not been removed. The evidence against defendant, while sufficient to support his convictions (except with respect to Count 6, as explained below), was based on statements and testimony by victims who were between three and five years of age when the alleged sexual acts occurred, including parts that were not consistent or credible. And there were certain voir dire responses provided by the alternate who replaced Juror No. 4 that suggested at least a potential bias in favor of the prosecution.
II
Sufficiency of the Evidence
Defendant also claims his convictions for Counts 3 and 6 must be reversed for insufficient evidence. We address these claims because, as our Supreme Court has explained, “an appellate ruling of legal insufficiency is functionally equivalent to an acquittal and precludes a retriаl.” (People v. Hatch (2000) 22 Cal.4th 260, 272; Burks v. United States (1978) 437 U.S. 1, 18.) We conclude sufficient substantial evidence supports Count 3. Not so with respect to Count 6.
A.
Standard of Review
” ‘In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]’ [Citations.] All conflicts in the evidence and questions of credibility are resolved in favor of the verdict, drawing every reasonable inference the jury could draw from the evidence. [Citation.] Reversal on this ground is unwarranted unless ’ “upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” ’ [Citation.] This standard applies whether direct or circumstantial evidence is involved. [Citation.]” (People v. Cardenas (2015) 239 Cal.App.4th 220, 226-227.) ” ‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendant‘s guilt beyond а reasonable doubt. If the circumstances reasonably justify the trier of fact‘s findings, the opinion of the reviewing
B.
Count 3
Defendant was convicted of having sexual intercourse with H., a child 10 years of age or younger, in violation of
Highlighting a number of “fantastical claims” made by H. during the interview, e.g., the claim defendant put stuffed animals in the interview room into her vagina and the additional claim her mother was also involved in one of the incidents of abuse and killed defendant when he did not stop, as she asked, and further pointing out it was Brophy who “first and repeatedly suggested that an act of sexual intercourse had happened at the pool,” as opposed to at the trailer in Texas, defendant argues the evidence “was too unreliable to support a finding beyond a reasonable doubt that [he] had engaged in an act of sexual intercourse [with H.] after the family moved to California.”
We conclude the evidence recounted above is sufficiently substantial to support the jury‘s finding defendant engaged in an act of sexual intercourse with H. in California. Brophy specifically asked H. whether defendant put his penis inside her vagina at the recreational pool in Hornbrook. She said he did. Defendant does not dispute this out-of-court statement was properly admitted into evidence for the truth of the statement. Nor сould he. (See
We conclude sufficient substantial evidence supports defendant‘s conviction in Count 3. As such, defendant may be retried as to this count.
C.
Count 6
Defendant was also convicted of the continuous sexual abuse of H., a child under the age of 14 years, in violation of
In Mejia, supra, 155 Cal.App.4th 86, the defendant was charged with and convicted of the continuous sexual abuse of the victim “on or between June 1, 2004 and
Here, defendant was charged with and convicted of the continuous sexual abuse of H. “between May 1, 2013 and July 31, 2013.” Accordingly, we must determine whether there is reasonable, credible, and solid evidence the first incident of sexual abuse perpetrated against H. in California happened early enough in May and the last such incident happened late enough in July such that at least 90 days elapsed between these
DISPOSITION
The judgment is reversed and the matter is remanded for retrial as to Counts 1 through 5 and 7, if the People so elect.
/s/
HOCH, J.
We concur:
/s/
HULL, Acting P. J.
/s/
RENNER, J.