P. v. Du 3/29/02 CA2/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B110122

Case Date: 06/20/2002

Preview:Filed 3/29/02

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, Plaintiff and Respondent, v. LAC VINH DU et al., Defendants and Appellants. ____________________________________ In re LAC VIN DU, on Habeas Corpus. B120896 B110122 (Super. Ct. No. BA115846)

APPEAL from a judgment of the Superior Court of Los Angeles County, Morris B. Jones, Judge. Reversed and ordered dismissed. Petition for writ of habeas corpus is denied as moot. Eleanor M. Kraft; Berley & DeVito and Cara DeVito, under appointments by the Court of Appeal, for Defendants and Appellants. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Lance E. Winters, and Suzann E. Papagoda, Deputy Attorneys General, for Plaintiff and Respondent.

_______________ Following removal of a hold-out juror during deliberations, a jury consisting of 11 original jurors and an alternate convicted appellants Lac Vinh Du and Tuong Vinh Du of one count of second degree murder in violation of Penal Code section 187, subdivision (a) and three counts of attempted murder in violation of sections 664 and 187. The jury also found true various enhancements related to the use of firearms in the commission of the crimes. The trial court sentenced Lac to a total term of 16 years to life in state prison and Tuong to a total term of 33 years and 8 months to life in state prison. Appellants appealed from the judgments of conviction, contending, inter alia, that the trial court abused its discretion when it dismissed the hold-out juror. We held that the trial court did not err in dismissing the juror, and affirmed the judgment. Appellants petitioned our Supreme Court for review. The Supreme Court transferred review to this Court, with directions to vacate our earlier decision and to reconsider this cause in light of People v. Cleveland (2001) 25 Cal.4th 466. We now do so.

Facts Appellants were convicted for their roles in a 1994 gang-related shooting at the Rose Room, a nightclub in Rosemead. Henry Chang, Adam Zachs and David Yang were shot as they left the club. Sam Chan was shot and killed. Appellants were arrested as they drove away from the scene of the shooting with four others. Tuong admitted to police that he had fired a gun into the crowd outside the Rose Room, and said that he did so because he was afraid. Lac admitted to police that he knew there would be a problem at the Rose Room and that someone in his group was taking a gun there. He said that he intended to back up his fellow gang members with his fists.

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Discussion In letter briefs filed after this matter was transferred to us from the Supreme Court, appellants contend that People v. Cleveland, supra, demonstrated that the trial court erred in dismissing Juror No. 5., a hold-out juror. We agree.

1. Facts. At 3:00 p.m. on the second full day of deliberations, the trial court received a note from the jury foreperson which read as follows: "We have a juror who does not want to explain to us or deliberate why she has staunchly stood her ground on her decision (verdict) concerning this case. We, the majority of the jury, agree that this particular juror has not reasonably explained her stance with her decision, and further, she is not willing to further deliberate concerning her actions. We, as a jury, are very concerned about this predicament and want to know what the next step is we need to take." The trial court then questioned each of the jurors with counsel present, and received the following responses. The foreperson (Juror No. 8) explained that as the jury was going through the instructions at the beginning of the second day, Juror No. 5 stated she had reached a decision on the case, was staunchly maintaining it, and refused to explain her decision and further refused to discuss the case with the rest of the jury. According to the foreperson, Juror No. 5 was talking to the jurors, but repeatedly stated she had reasonable doubt, but would not explain the reasons for her position. Juror No. 5 also would not discuss the facts or evidence of the case. Juror No. 1 said Juror No. 5 told the jury, "I made up my mind. I thought about it last night. I made up my mind, and it's made up. It's [sic] nothing you can say." Juror No. 5 refused to deliberate with the rest of the jury stating that "she feels that the defendant was intimidated." She would not enter into a "give and take" discussion of the evidence. Juror No. 1 did not think Juror No. 5 had a bias

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or racial problem. Juror No. 5 would not "give any kind of reason, no kind of statement, anything as to why." Juror No. 2 stated that Juror No. 5 said she had "overnight made up [her] mind." Juror No. 5 said she had reasonable doubt and refused to listen to further deliberations. She told the jury, "I made up my mind." She refused to listen to further deliberations. I thought about it last night. I made up my mind, and it's made up. It's [sic] nothing you can say." . She refused to give specific reasons for her doubt and would not answer others' questions. Juror No. 2 believed Juror No. 5 was not cooperating with the rest of the jury. Juror No. 5 did not pay attention to the others' questions or the on-going discussions in the juror room. Juror No. 5 at one point said, "Well, if, if answering the question like that means to be agreeing with you, then I must be wrong." Juror No. 5 did not give specific reasons for what she called "reasonable doubt" because that was the excuse. Juror No. 5 "has like an attitude as being against the rest of the juror's decision or opinion . . ." and has an opposite answer to the answer of the other jurors. Juror No. 3 stated that Juror No. 5 indicated the first thing in the morning of the second day that she had made up her mind. When Juror No. 5 stated that her mind was made up, the other jurors suggested reviewing the evidence, but Juror No. 5 said she "didn't need to," because she had already made up her mind. While Juror No. 5 participated in the day's discussions to an extent, "she didn't want to listen or consider the evidence again. She just didn't want to anymore. She felt like she had already made up her mind." When asked to explain her mental processes, "she wasn't very helpful in that regards." According to Juror No. 4, Juror No. 5 refused to deliberate with the rest of the jury and, first thing in the morning, she advised the others she had "made [her] mind up." Juror No. 4 believed another day of deliberations might lead to further progress, as Juror No. 5 was "begrudgingly" discussing the facts of the case. However, Juror No. 5 also said "over and over again," "I've got my mind made up. I have reasonable doubt. I have reasonable doubt. I have reasonable doubt." 4

Juror No. 5 was not helpful in presenting her case or giving the jurors some evidence she relied on. Juror No. 6 opined Juror No. 5 appeared to have trouble understanding or interpreting "the wording of the facts," and seemed to be close-minded. Juror No. 5 said she had made up her mind at home the previous evening. The other members of the jury started going over it again line by line to see where the misunderstanding was, but Juror No. 5 "seems kind of close-minded still." Juror No. 7 stated Juror No. 5 refused to discuss the case with the rest of the jury. According to Juror No. 7, there had been agreement on certain issues the previous day, but in the morning, Juror No. 5 said, "I've gone home and thought about it, and I've made up my mind, and this is it." Juror No. 5 refused to explain how she had reached her conclusions. Juror No. 7 did not believe Juror No. 5's decision was based upon any bias or prejudice. Juror No. 5 "does not go off in a corner and put their hands over their head," but will not answer any questions or give reasons to help other jurors feel the way she does. Juror No. 9 stated Juror No. 5 refused to deliberate any further. According to Juror No. 9, Juror No. 5 said she had not slept and had deliberated "last night amongst her own self in her mind and [was] through. She made up her mind at 9 a.m. this morning." Juror No. 5 refused to discuss her views and "repeatedly looked out the window" and said "I don't have to agree with you and just because you don't like what I say, doesn't mean that you're right." Juror No. 10 opined Juror No. 5 was not agreeing with the others and was "failing to accept some of the evidence." Juror No. 5 said she had a reasonable doubt, but could not articulate where or explain the basis for her doubt. The other eleven jurors kept firing off different ideas trying to get Juror No. 5 to explain the problem in accepting a particular piece of evidence, but she always went back to "reasonable doubt." Juror No. 5 appeared to have "problems" in terms of "being receptive to ideas from the other jurors," but by the end of the first day of deliberations, "everyone pretty much agreed on things. Today [Juror No. 5] came 5

in and said, 'I, I have a reasonable doubt."' Juror No. 5 wanted to "submit that we're stuck." Juror No. 5 also said she had made up her mind and was not going to change her mind. Juror No. 11 stated although the other jurors had not finished deliberating, Juror No. 5 said she was not willing to deliberate further as she had made up her mind. Juror No. 11 felt Juror No. 5 had not "really listened and tried to consider what the other people were saying," throughout the second day of deliberations. Juror No. 5 continually brought up one point that the others had considered, which was "an age issue." Specifically, Juror No. 11 said she believed No. 5 felt that "the age of one of the defendants was young . . . and feels that perhaps the piece of evidence being the tape -- on that tape --." The court interrupted and asked the juror not to go into the evidence. Juror No. 12 stated Juror No. 5 refused to deliberate with the rest of the jury. Before the jury even started the second day's deliberations, Juror No. 5 informed the jury she had already made her decision. Juror No. 12 believed that while Juror No. 5 had no racial bias, she did not "want to deal" with the rest of the jury and would not respond to their questions in a "coherent" manner. Juror No. 12 expressed the view that "every juror in there has tried to come up with some way that would make her comfortable at giving us an explanation for things that she -- in other words she doesn't want to tell us why she feels, you know, the way she does." Juror No. 5, when questioned by the trial court, said that she thought all jurors were deliberating and that the one juror who was not in accord with the other jurors was discussing the facts of the case. In response to the trial court's question as to whether a juror had made up her mind at home, reached a decision, and refused to further deliberate, Juror No. 5 responded, "That's not true, Your Honor, because all of the jurors have been deliberating today." When asked if she had anything to add about the deliberation process, Juror No. 5 stated, "Like I said before, I think certain jurors think they can, you know, make the decisions for 6

everybody, and I think we have to do it individually, at least those were your instructions." After the trial court advised her that the jury was to deliberate as a group and try to reach an agreement on the case, Juror No. 5 stated, "And if there is no agreement on the case after the jurors have deliberated and if it's not unanimous, the juror -- I think that -- I think that he or she has done everything within [her] power, and I think that's what we're talking about." After hearing argument, the trial court ruled as follows: "If a juror went home and made up their mind and says I've made up my mind, I'm not going to talk about it, something is wrong there. [

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