P. v. Du

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 977.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.
B110122
(Super. Ct. No. BA115846)
B120896
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.

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_______________
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."

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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

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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

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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. [¶] [T]he Court does have the discretion
under Penal Code [section] 1089 to dismiss a juror prior to a verdict upon showing
that the juror is unable to perform his or her duty by way of deliberations. [¶]
And I think from what has been said by all -- well, all of the jurors basically have
indicated that one juror is not deliberating except one of the jurors, and that one
juror just gave two general statements. [¶] I'm going to bring the foreperson out
and find out who that particular juror is at this time, and the court will excuse that
juror from the panel."
Recognizing that counsel for both appellants did not agree with this action,
the court stated: "That's an appellate issue if the court removes the juror and
there's not demonstrated good cause. That's what happens in that situation."
The trial court excused Juror No. 5 and replaced her with an alternate juror.
2. Standard of review.
Section 1089 provides in relevant part: "If at any time, whether before or
after the final submission of the case to the jury, a juror dies or becomes ill, or
upon other good cause shown to the court is found to be unable to perform his
duty, . . . the court may order him to be discharged and draw the name of an
alternate, who shall then take his place in the jury box. . . ." A juror who refuses
to deliberate may be removed on the theory that such a juror is "unable to perform

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his duty" within the meaning of section 1089. (People v. Cleveland, supra, 25
Cal.4th at p. 475.)
As our Supreme Court stated in Cleveland: "'We review for abuse of
discretion the trial court's determination to discharge a juror and order an alternate
to serve. [Citation.] If there is any substantial evidence supporting the trial court's
ruling, however, we will uphold it. [Citation.] We also have stated, however, that
a juror's inability to perform as a juror' "must appear in the record as a
demonstrable reality" '[Citation.]'" (People v. Marshall (1996) 13 Cal.4th 799,
843, 55 Cal.Rptr.2d 347, 919 P.2d 1280.)" (People v. Cleveland, supra, 25
Cal.4th at p. 474.) Thus, "[t]he trial court may discharge the juror if it appears as a
demonstrable reality that the juror is unable or unwilling to deliberate." (Id. at p.
484 [internal quotation marks omitted].) Thus, our job here is to determine from
the record whether there is substantial evidence to establish as a demonstrable
reality that Juror No. 5 failed to deliberate.
3. Guidelines to determine a refusal to deliberate.
Our Supreme Court has warned, "caution must be exercised in determining
whether a juror has refused to deliberate. California courts have recognized the
need to protect the sanctity of jury deliberations." (People v. Cleveland, supra, 25
Cal.4th at p. 475.) Indeed, "[t]he very act of questioning deliberating jurors about
the content of their deliberations could affect those deliberations." (Id. at p. 476.)
Thus, "a trial court's inquiry into possible grounds for discharge of a deliberating
juror should be as limited in scope as possible, to avoid intruding unnecessarily
upon the sanctity of the jury's deliberations. The inquiry should focus upon the
conduct of the jurors, rather than upon the content of the deliberations." (Id. at
p. 485 [emphasis added].)
"[P]roper grounds for removing a deliberating juror include refusal to
deliberate. A refusal to deliberate consists of a juror's unwillingness to engage in
the deliberative process; that is, he or she will not participate in discussions with

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fellow jurors by listening to their views and by expressing his or her own views.
Examples of refusal to deliberate include, but are not limited to, expressing a fixed
conclusion at the beginning of deliberations and refusing to consider other points
of view, refusing to speak to other jurors, and attempting to separate oneself
physically from the remainder of the jury. The circumstance that a juror does not
deliberate well or relies upon faulty logic or analysis does not constitute a refusal
to deliberate and is not a ground for discharge. Similarly, the circumstance that a
juror disagrees with the majority of the jury as to what the evidence shows, or how
the law should be applied to the facts, or the manner in which deliberations should
be conducted does not constitute a refusal to deliberate and is not a ground for
discharge. A juror who has participated in deliberations for a reasonable period of
time may not be discharged for refusing to deliberate, simply because the juror
expresses the belief that further discussion will not alter his or her views.
[Citation.]" (People v. Cleveland, supra, 25 Cal.4th at p. 485.)
4. Court's inquiry.
After questioning all of the jurors, the trial court removed Juror No. 5
because the court found that "all of the jurors basically have indicated that one
juror is not deliberating." This, however, is an incomplete statement of what the
trial court's inquiry had shown. All of the jurors agreed, and the trial court
implicitly recognized, that Juror No. 5 had participated in the first day of
deliberations to the satisfaction of all the other jurors.
In addition, when the trial court reminded Juror No. 5 that all jurors were to
discuss and deliberate on the facts of the case, Juror No. 5 responded, "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." Juror No. 5
correctly stated that a majority was not entitled to make the decisions for all the
jurors, "and I think we have to do it individually, at least those were your

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instructions" These comments indicated that Juror No. 5 understood and was
attempting to comply with the court’s instructions. 1
These additional facts establish that Juror No. 5 should not have been
discharged for failing to deliberate under the guidelines set forth in Cleveland,
supra. As the Court in Cleveland made clear: "A juror who has participated in
deliberations for a reasonable period of time may not be discharged for refusing to
deliberate, simply because the juror expresses the belief that further discussions
will not alter his or her views." (People v. Cleveland, supra, 25 Cal.4th at p. 485.)
We recognize that Juror No. 5's alleged refusal to deliberate arose after she
had changed her views. However, such a change is not a relevant factor for
consideration under Cleveland. As the Court in Cleveland instructs: "The inquiry
should focus upon the conduct of the jurors, rather than upon the content of the
deliberations." (People v. Cleveland, supra, 25 Cal.4th at p. 485.)
The record is clear that Juror No. 5 deliberated for the first day. On the
second day she announced that she had thoroughly reviewed the matter in her
mind and was convinced that the People had failed to prove appellant guilty
beyond a reasonable doubt. She had done "everything within [her] power to
explain her position" and concluded further deliberations would be futile. Juror
No. 5 should not have been discharged because she failed to deliberate further. A
juror who has participated in deliberations for a reasonable period of time may not
1 The jury was instructed with CALJIC No. 17.40 as follows:
"The People and the defendant are entitled to the individual opinion of each
juror.
"Each of you must consider the evidence for the purpose of reaching a
verdict if you can do so. Each of you must decide the case for yourself, but should
do so only after discussing the evidence and instructions with the other jurors.
"Do not hesitate to change an opinion if you are convinced it is wrong.
However, do not decide any question in a particular way because a majority of the
jurors, or any of them, favor such a decision.
"Do not decide any issue in this case by chance, such as the drawing of lots
or by any other chance determination."

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be discharged for refusing to deliberate, simply because the juror expresses the
belief that further discussion will not alter his or her views. [Citation.]" (People
v. Cleveland, supra, 25 Cal.4th at p. 485.)
Further, although the trial court found that Juror No.5 had not been
deliberating, we believe that the jurors' responses to the court's inquiry fail to show
as a demonstrable reality that Juror No. 5 refused to deliberate on the second day.
Juror No. 5 herself stated that all the jurors were deliberating.
Two jurors expressly told the court that Juror No. 5 had continued to
participate in discussions. Juror No. 3 stated that Juror No. 5 participated in the
second day's discussion "to an extent." Juror No. 4 stated that Juror No.5 was
"begrudgingly discussing the facts of the case.
The remainder of the jurors stated that Juror No. 5 would not deliberate; yet
their comments showed that Juror No. 5 had participated substantively in
deliberations. Juror No. 1 said that Juror No. 5 "feels that the defendant was
intimidated." Juror No. 11 stated that Juror No. 5 continually brought up one point
that the other jurors had considered, which was an "age issue," and that Juror No.
5 "feels that perhaps the evidence, the piece of evidence being the tape --."
Clearly, the jurors could not have learned that Juror No. 5 felt this way unless she
told them during deliberations.
Juror No. 2 stated that Juror No. 5 "has an opposite answer to the answer of
the other jurors," and that Juror No. 5 had said "If answering the question like that
means to be agreeing with you, then I must be wrong." Juror No. 9 stated that
Juror No. 5 stated "Just because you don't like what I say, doesn't mean you're
right." Juror No. 8, the foreperson, acknowledged that Juror No. 5 was talking to
the other jurors. He also stated "we were going through questions. Sometimes
she'll just say, well this, this is it. . . . And she does not answer those questions.
These remarks show that Juror No. 5 was making substantive remarks, was
indicating her disagreements with specific areas where the other jurors apparently
all agreed, and was answering some questions.

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Juror No. 6 stated that Juror No. 5 appeared to have trouble understanding
or interpreting "the wording of the facts." Juror No. 10 stated that Juror No. 5 was
"failing to accept some of the evidence." The remarks strongly suggest that Juror
No. 5 was providing some kind of substantive feedback to the other jurors which
made them think that she did not understand or agree with some specific facts.
Juror No. 7 told the court that she did not believe that Juror No. 5's decision
was based on "ethnic or personal or racial" bias or prejudice. Similarly, Juror No.
12 told the court that Juror No. 5's decision did not have a racial basis. These
remarks also suggest that Juror No. 5 had provided the other jurors with some
reasons for her beliefs which were detailed enough for the jurors to feel
comfortable that her beliefs were not based on bias or prejudice.
Thus, the jurors all sent mixed messages about Juror No. 5's conduct on the
second day of deliberations. The only clear and uniform message that the jurors
sent was that they were frustrated that they could not persuade Juror No. 5 to agree
with them. As discussed above, a juror is required only to deliberate, not to agree
with the majority.
The jurors' comments show that it is at least as likely that Juror No. 5 was
unable to explain her views to the other jurors and that she engaged in the sort of
faulty or disagreeable deliberating permitted by Cleveland, as it is that Juror No. 5
refused to deliberate at all.
For the reasons set forth above, we conclude that the record does not
establish as a demonstrable reality that Juror No. 5 refused to deliberate. The trial
court thus abused its discretion in dismissing Juror No. 5.
We find the erroneous dismissal to be prejudicial. The statements of the
jurors indicate that Juror No. 5 was a hold-out juror for acquittal. Juror No. 5
herself indicated that she had reasonable doubt and that further deliberations
would not change her mind. (People v. Cleveland, supra, 25 Cal.4th at p. 486.)
The judgment must be reversed.

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5. Double Jeopardy
The Court in Cleveland did not expressly discuss the issue of whether the
defendant in that case could be retried. Subsequently, our colleagues in Division
Four of this District Court of Appeal have considered the double jeopardy
implications of an erroneous dismissal of a juror for refusing to deliberate, and
have found that jeopardy bars a retrial. (People v. Hernandez (2002) 95
Cal.App.4th 1346.) In letter briefs filed after the publication of Hernandez,
appellant contends that the doctrine of double jeopardy bars his retrial in this case.
We agree.
The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution protects a defendant in a criminal proceeding against multiple
punishments or repeated prosecutions for the same offense. (U.S. v. Dinitz (1976)
424 U.S. 600, 606.) Article I, section 15 of the California Constitution likewise
guarantees that "[p]ersons may not twice be put in jeopardy for the same offense."
We agree with our colleagues that "[t]he determination of whether to
preclude retrial in any given situation can be made only by focusing on all of the
fundamental rights and policies upheld by the prohibition on double jeopardy,
including the 'need to protect the interest of an accused in retaining a chosen jury'
(Crist v. Bretz, supra, 437 U.S. at p. 35 [98 S.Ct. at p. 2161]), the right to a fair
and impartial jury rather than one selected by the prosecution (People v. Young,
supra, 100 Cal.App. at p. 23), and the importance of avoiding trials in which
undue advantage has been placed in the hands of the prosecution (Larios v.
Superior Court, supra, 24 Cal.3d at p. 329; Downum v. United States, supra, 372
U.S. at p. 736 [83 S.Ct. at p. 1034].)." (People v. Hernandez, supra, 95
Cal.App.4th at p.1370.)
The Court in Hernandez applied the above-stated policies to the case before
them and concluded "that jeopardy bars retrial when, without legal necessity or
good cause, the court alters the composition of the jury in the middle of trial in a

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way that favors the prosecution." (People v. Hernandez, supra, 95 Cal.App.4th at
p. 1371.)
We reach the same conclusion here. In the case before us, the removal of
Juror No. 5 without legal necessity or good cause altered the composition of the
jury in a way that favored the prosecution. We agree with our colleagues that
"were we to conclude that retrial is permitted under these circumstances, the vital
and fundamental right of every citizen to trial by a fair and impartial jury would be
gravely undermined and the right to be free from double jeopardy would be
rendered meaningless." (People v. Hernandez, supra, 95 Cal.App.4th at p. 1371.)
"If the result of discharging a juror sympathetic to the defense without good cause
was nothing more than a reversal of the conviction and remand for retrial minus
the offending juror, we fear such discharges could become routine. This would do
lasting harm to the fundamental rights protected by the right to trial by an
impartial jury and the prohibition against double jeopardy." (Ibid. [footnote
omitted].)
"As its ancient lineage attests, the double jeopardy clause is no mere
'technicality'; it is an integral part of 'the framework of procedural protections
which the Constitution establishes for the conduct of a criminal trial." (United
States v. Jorn [(1971)] 400 U.S. [470] at p. 479 [27 L.Ed.2d at p. 553] (plur.
opn.).) . . . [¶] . . ."The double jeopardy clause suffers no compromise; therein lies
its strength and vitality. The extent of our inquiry ends with its proper application:
'Whether guilty or innocent of the offense with which he [is charged, the defendant
is] entitled to have his case fairly tried according to the established rules of law.
As was said by a learned judge, "Though unfair means may happen to result in
doing justice to the prisoner in the particular case, yet justice so attained is unjust
and dangerous to the whole community." (Hurd v. State, 25 Mich. 405.) The
doctrine that respect for the law cannot be inspired by withholding the protection
of the law from those accused of crime is one which recognizes no exceptions. To
be watchful for the constitutional and individual rights of the citizen against any

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encroachment thereon is one of the primary duties and obligations of the courts,
and it is by unrelenting watchfulness and zeal in this regard that the conviction of
the innocent will be averted.' (People v. Mendoza (1942) 55 Cal.App.2d 625, 633;
cf. People v. Superior Court (Harris) (1990) 217 Cal.App.3d 1332 [defendant may
not be retried for death penalty after sentence of life without possibility of parole
reversed].)" (People v. Superior Court (Marks) 1 Cal.4th 56, 78-79.)
Disposition
The judgment of conviction is reversed and this matter is ordered
dismissed. Petition for habeas corpus is denied as moot.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, J.
I concur:
MOSK, J.

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Turner, P.J.
I respectfully dissent from the reversal of the judgment and the dismissal of
the amended information. In this regard, I believe that: the entire issue
concerning excusing juror No. 5 has been waived by defendant, Lac Vinh Du1; all
Sixth Amendment objections have been waived; the trial court would not have
abused its discretion in concluding there was good cause within the meaning of
Penal Code section 1089 as construed in People v. Cleveland (2001) 25
Cal.4th 466, 475-485 to discharge the juror; and the double jeopardy analysis in
People v. Hernandez (2002) 95 Cal.App.4th 1346, 1354-1371 is incorrect.
First, Lac has waived the entire issue. Counsel for Lac never interposed an
objection to the order excusing juror No. 5. Therefore, the entire issue has been
waived. There are well established and consistently applied California Supreme
Court holdings requiring prompt and timely objections in connection with a whole
host of constitutional and statutory issues. (E.g. People v. Frye (1998) 18 Cal.4th
894, 969 [prosecutorial misconduct]; People v. Alvarez (1996) 14 Cal.4th 155, 186
[Sixth Amendment confrontation claim]; People v. Jackson (1996) 13 Cal.4th
1164, 1235 [admissibility of gun under § 190.3, subd. (b)]; People v. Turner
(1994) 8 Cal.4th 137, 177 [Fourth Amendment claim]; People v. McClellan
(1993) 6 Cal.4th 367, 376-377 [misadvisement by the judge as to the
consequences of a guilty plea]; People v. Clark (1993) 5 Cal.4th 950, 994
[conflicted representation in violation of the Sixth Amendment]; People v.
Saunders (1993) 5 Cal.4th 580, 589 [statutory violations of Pen. Code, §§ 1025
and 1164 by prematurely discharging the jury]; People v. Welch (1993) 5 Cal.4th
228, 234-235 [improper probation conditions]; People v. Visciotti (1992) 2 Cal.4th
1, 48 [improper voir dire questions]; People v. Gallego (1990) 52 Cal.3d 115, 179
[delay in objecting to destruction of evidence]; People v. Wright (1990) 52 Cal.3d

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367, 411 [judicial misconduct]; People v. Carrera (1989) 49 Cal.3d 291, 317
[improper questioning of witnesses].) The reason for these rules has been
articulated by the California Supreme Court 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.’”
(Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1,
italics in Doers.) ‘“The purpose of the general doctrine of waiver is to encourage
a defendant to bring errors to the attention of the trial court, so that they may be
corrected or avoided and a fair trial had . . . .”’ (People v. Walker (1991) 54
Cal.3d 1013, 1023.) ‘“No procedural principle is more familiar to this Court than
that a constitutional right,” or a right of any other sort, “may be forfeited in
criminal as well as civil cases by the failure to make timely assertion of the right
before a tribunal having jurisdiction to determine it.” [Citation.]’ (United States
v. Olano (1993) [507 U.S. 725, 731].)” (People v. Saunders, supra, 5 Cal.4th at p.
590, fn. omitted.) The failure to ever object to excusing juror No. 5 constitutes
waiver, forfeiture, and procedural default of all of Lac’s constitutional and
statutory claims.
Second, all of Tuong’s Sixth Amendment objections have been waived.
Tuong’s counsel only objected to the order excusing juror No. 5 and never set
forth any grounds. Presumably, Tuong’s counsel was objecting under Penal Code
section 1089, the provision of law the trial court was applying. Tuong has waived
all constitutional issues and they are now the subject of procedural default. The
1 Because of the similarity their names, for purposes of clarity and not out of

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California Supreme Court has repeatedly held that constitutional objections must
be interposed in order to preserve such contentions on appeal. (People v. Williams
(1997) 16 Cal.4th 153, 250 [objection raised for the first time on appeal that
admission of gang paraphernalia violated defendant’s associational rights under
the First and Fourteenth Amendments waived when not presented in trial court];
People v. Garceau (1993) 6 Cal.4th 140, 173 [Sixth and Fourteenth Amendment
claims to a fair trial and equal protection in connection with jury selection waived
when not presented in trial court]; People v. McPeters (1992) 2 Cal.4th 1148,
1174 [Sixth Amendment discriminatory juror selection issue waived when not
presented in trial court].)
Third, there would have been no abuse of discretion under the rule
established in Cleveland in excusing juror No. 5. On October 16, 1996, after the
conclusion of final jury instructions, the alternate was excused. The trial court
been stated: “Counsel, there will be no deliberating tonight. They will return
tomorrow at 9 a.m. Leave a number where we can reach you. And if anything
comes up, we’ll contact you expeditiously. . . . [¶] Good night. Thank you. [¶] .
. . All three counsel may look at the forms. . . . make sure they are okay.” After
both defense attorneys acknowledged they had looked at the verdict forms, the
court stated: “Okay. Then, we’re in recess until tomorrow morning.”
The clerk’s minutes for October 17, 1996, indicate that the jury commenced
deliberations at 9 a.m. The jurors deliberated between 9 and 10:30 a.m. At 10:30
a.m. the recess was taken and deliberations resumed at 10:50 a.m. At noon,
deliberations ceased during the lunch recess. In the morning of October 17, the
jurors only deliberated 160 minutes. The jury resumed deliberations at 1:30 p.m.
At 1:55 p.m. the jury presented the court with a written inquiry. The jurors were
not brought into the courtroom until 62 minutes later at 2:57 p.m. At 3:04 p.m.,
the jurors resumed deliberations and were excused at 4 p.m. It is difficult to assess
any disrespect for either defendant, they will be referred to as Lac and Tuong.

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how long deliberations transpired on the afternoon of October 17. If the
deliberations ceased at 1:55 p.m. when the written inquiry was presented and
discussions recommenced at 3:04 p.m., the total deliberations in the afternoon
consumed only 81 minutes. Often, but not always, deliberations are put on hold
when a written question is presented to the court. On the other hand, if the jurors
deliberated from 1:30 p.m. except for the 7 minutes in the courtroom when their
question was answered, then the jury deliberated only 2 hours, 21 minutes. When
the record is viewed in a light most favorable to the judgment, total deliberations
on October 17 consisted of only 4 hours, 41 minutes. If the record is viewed in the
light least favorable to the judgment, then the total deliberations on October 17
consisted of only 5 hours, 6 minutes.
Juror No. 5, according to the other jurors, made up her mind at home after
the conclusion of deliberations on October 17. Under the analysis in Cleveland, a
juror who deliberately refuses to obey a court order to deliberate may not be
excused if she or he has participated in “deliberations for a reasonable period . . .
.” (People v. Cleveland, supra, 25 Cal.4th at p. 485.) This issue is reviewed for
an abuse of discretion. (People v. Bradford (1997) 15 Cal.4th 1229, 1351; People
v. Osband (1996) 13 Cal.4th 622, 674-675.) The trial court, without abusing its
discretion, could have concluded there had not been deliberations for a
“reasonable period” of time as that term is used in Cleveland. There had been
only a single day of deliberations which consumed between 4 hours, 41 minutes
and 5 hours, 6 minutes of deliberations. There were four counts charged against
defendants plus a total of 22 separate special allegations. The jury instructions,
which included complex analysis concerning lesser-included offenses and various
mental states, consisted of 82 pages. The “reasonable period” of time language in
Cleveland necessarily vests trial judges with the authority to consider the
complexity the case along with the duration of deliberations. Because, without
abusing discretion, the trial court could have concluded that deliberations had not
occurred for a “reasonable period” of time, the willful refusal of juror No. 5 to

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obey the order to deliberate constitutes “good cause” within the meaning of
section 1089. (People v. Cleveland, supra, 25 Cal.4th at pp. 475-485.)
Of course, the problem in this case is the trial court never exercised its
discretion under Cleveland. This is because Cleveland was not decided until
nearly a half-decade after the trial in this case. The injustice resulting from
California’s outdated rule requiring retroactive application of judicial decisions is
obvious. Two convicted murderers are being released, they will go free, because
the trial judge did not exercise discretion under a specific rule not announced until
nearly a half-decade later. Hopefully, the Legislature or the voters will take action
to ban the retroactive application of appellate court decisions such as Cleveland.
The families of victims of gang-related homicides deserve such from the
Legislature and the voters.
Finally, there is no merit to the People v. Hernandez, supra, 95
Cal.App.4th at pages 1354-1371 double jeopardy analysis. If a conviction is
reversed, under these circumstances, an accused is subject to retrial, double
jeopardy protections notwithstanding. Two binding decisions, United States v.
DiFrancesco (1980) 449 U.S. 117, 131 and People v. Superior Court (Marks)
(1991) 1 Cal.4th 56, 71-72, neither cited in Hernandez, compel such a result.
TURNER, P.J.

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