THE PEOPLE, Plaintiff and Respondent, v. DEREK RENE AIKENS, Defendant and Appellant; In re Aikens on Habeas Corpus, 207 Cal. App. 3d 209

Opinion WOODS, (Fred), J. Defendant was convicted on two counts of assault with a deadly weapon. Defendant has presented this court with a list of 12 claims of error on this appeal. We find no merit to any of the claims of error and affirm the judgment. Factual Synopsis An extensive treatment of the evidence is not necessary since appellant does not contest the sufficiency of the evidence. Suffice it to state that appellant was convicted as a result of a “baseball bat attack” on victims, Leonard Clark and Patricia Clark, “resulting in bodily injuries to both victims.” Discussion 1.

The Trial Court Did Not Commit Reversible Error in Substituting a Juror After a Verdict Had Been Reached on One of the Two Charged Counts. It is appellant’s position that, regardless of the number of potential verdicts, once a jury arrives at a verdict the court may not excuse a juror, insert an alternate, and allow the reconstituted jury to deliberate regarding other verdicts. The logical extension of this position would be to require an automatic mistrial even if a juror should die or become incapacitated and even if 10 fully qualified alternate jurors were available for substitution.

However, this “mechanistic” approach appears not to be consonant with Penal Code

section 1089 which states: “If at any time, whether before or after the final submission of the case to the jury, . . . the court may order him to be discharged and draw the name of an alternate . . . .” (Italics added.) We note from the legislative history that the language “[i]f at any time, whether before or after . . .” was added by the legislature in 1933. There appears to be a clear legislative intent that alternate jurors may be substituted “at any time,” including, arguendo, the eventuality where one or more but not all verdicts have yet been reached.

At least this consequence has not been excluded by case law or by statute according to our search of existing authorities. Despite the absence of appellate decisions, one would have expected that in the last 55 years there would have been many instances of such substitutions reported in the case law. Such does not appear to be the case. In People v. Collins (1976) 17 Cal.3d 687 [131 Cal.Rptr. 782, 552 P.2d 742] the court held that it is constitutional (both United States and California) to substitute jurors after deliberations have begun.

Collins also holds that when a juror substitution occurs after deliberations have begun the jury must be instructed to begin deliberations anew, not resume them. {Id., at p. 694.) It is error to fail to give such an instruction. Although no such instruction was given in Collins that error was judged by the Watson standard and the error in Collins was found to be harmless.

In Collins the court said: “We are confident that juries made aware of the rights involved will faithfully follow such instructions.” {Ibid.) There is no intimation in Collins that the holding was restricted to preverdict deliberations despite the fact that the defendant was charged with three counts. In the instant case the trial court gave the very instruction Collins required.

Using essentially the language of CALJIC No. 17.51 the jury was instructed by the trial judge at the time of juror substitution as follows: “Ladies and Gentlemen, one of your number has been excused for legal cause and replaced with an alternate juror, [U] You have observed, of course, why that is so and need not speculate on the reasons for that excuse. [H] The People and the defendant have a right to a verdict reached only after full participation of the 12 jurors who ultimately return a verdict.

This right may be assured in this case only if the jury begins its deliberations again from the beginning. [U] You are therefore instructed to set aside and disregard all past deliberations as to count 2 and begin those deliberations anew.

This must deem that each remaining original juror must set aside and disregard the earlier deliberations as if they had not taken place. [11] Does anyone missunderstand [szc] that?” In this uncomplicated case where the prosecution’s case-in-chief took about one day and the defense a little longer, what is there to indicate that the reconstituted jury did not follow the court’s instruction in its deliberation on count II? It would be a quantum leap to find reversible error in the face of the giving of this instruction by the trial court.

We are cognizant of the fact that the New Jersey Supreme Court has held in State v. Corsaro (1987) 107 N.J. 339 [526 A.2d 1046] to the contrary, but a careful reading of Corsaro leaves one with the distinct impression that the decision is superficial, unpersuasive and too mechanistic. The opinion fails to reveal that the court weighed important conflicting interests and addressed the realities of jury dynamics. Instead, a “formulistic” approach is taken by that court. Other considerations which lead us to our decision are as follows: This is not a close case on the facts.

Both victims positively identified the defendant. The only issue in the case is identification, not self defense, or other possible defenses. Additionally, an independent witness who was within a few feet of the defendant also positively identified the defendant. Although the evidence reveals that the fight took place at night, witnesses testified that there were nearby street lights. Appellant asserts that victim Clark contradicted his identification of appellant by his other testimony that he was told it was appellant who struck him.

But this contradiction was more semantic than real, as the trial court’s question revealed: “[s]o, are you saying that you saw this man hit you that night and your sister told you his name later? “Witness: Yes.” Appellant argues that the two counts are so inextricably intertwined that the new juror could not be a full participant in the deliberations on count II deliberations and that the guilty verdict on the first count returned by the original jury ordained a guilty verdict on the second count by the reconstituted jury.

A logical extension of this position cries out for a response to the question “then what was the defendant’s prospects on count II if the original jury had continued with the deliberations?” If excusing a postverdict juror, regardless of hardship, would cause a mistrial as to all other charges, trial courts would resist excusing such jurors. Here, the excused juror’s state of mind is revealed the transcript as follows: “The Court: People versus Aikens. . . . “We’re back to our problem of whether to relieve Mr. Esposito. Mr. Esposito, do you want to make it half a day at work, is that it? “Juror Esposito: Yeah.

I mean, I can’t afford not to be paid. That’s what it comes down to for me. “The Court: That’s going to create a big hardship for you, you think? “Juror Esposito: Well, I know it will.” Had Mr. Esposito been required to resume deliberations it is unlikely that he or his empathic fellow jurors would have unhurriedly and dispassionately weighed and considered the remaining charge. A rush to judgment seems more likely. In these circumstances it would have been an abuse of discretion for the trial judge not to have excused juror Esposito from the jury at that time in face of his declared state of mind.

In exercising its discretion concerning juror substitution the trial court should give paramount consideration to the constitutional rights of the accused, but weight should also be given to the state’s interest and the consequence which might flow therefrom if a mistrial is granted causing the prolongation of criminal proceedings. For example, suppose after a lengthy two-year trial a jury arrived at a verdict on a particular count and then a juror became disabled, leaving the other multiple counts not yet decided. Must there be an “automatic” mistrial, even though qualified alternate jurors are available?

We think not, for the following reasons: • The traumatic effect on victims who must be ground through the trial process all over again may be profound; • The expense which might accrue to the state as well as to the accused could be considerable; • Public confidence in the justice system could be eroded; and • The maxim of “justice delayed equals justice denied” would certainly have a relevant application in such an instance. If resolution and punishment following a proper conviction are so remote from the crime then the intended effect of deterrence would be diluted. 2.-12. Conclusion The judgment is affirmed.

Lillie, P. J., concurred. Appellant has also filed a petiiton for writ of habeas corpus (In re Derek Rene Aikens, B036550) which has been considered in this appeal. A separate order will be filed in that matter. See footnote, ante, page 209. The Watson standard is that before a reversal is required it must be “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 [299 P.2d 243].) More recently the California Supreme Court has stated, “[w]e recognize that unforeseen circumstances may require substitution of a juror at the penalty phase of a capital trial, even though the alternate did not take

part in the guilt phase deliberations. (See People v. Green (1971) 15 Cal.App.3d 524, 528-529 [93 Cal.Rptr. 84].) But in view of the discussion in People v. Collins, supra, 17 Cal.3d 687, we should not adopt a policy which contemplates substitution of alternate jurors after the guilt trial as a routine procedure.” (People v. Fields (1983) 35 Cal.3d 329, 351, fn. 9 [197 Cal.Rptr. 803, 673 P.2d 680].) See footnote, ante, page 209.