P. v. Moore

Filed 7/16/18 P. v. Moore CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLES E. MOORE,
Defendant and Appellant.
B282836
(Los Angeles County
Super. Ct. No. YA094020)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Eric P. Harmon, Judge. Affirmed.
Brad Kaiserman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Paul M. Roadarmel, Jr., and Allison H. Chung,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________

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BACKGROUND
In 2016, Charles E. Moore burglarized a home in Gardena,
California by breaking a rear sliding glass door, destroying the
security alarm system, and stealing a purse, wallet, jewelry, and
credit cards.
At trial, one of the voir dire panel, who was eventually
impaneled as Juror No. 4, explained that he had been burglarized
a month before trial. When asked whether he could remain
unbiased and fairly judge Moore, he said, “I hope so, yes.”
About a week into trial, Juror No. 4 arrived late and
informed the court that he needed a new juror badge, as his truck
had been ransacked the night before, and he did not “want to
touch . . . the handle to [his] truck to get [his] badge out.” He
explained that he suspected someone had gone into his truck and
removed a garage door opener, then went into the garage and
moved several items to the driveway.
Moore’s attorney moved to have Juror No. 4 excused for
cause. The trial court asked Juror No. 4 if he still believed he
could remain fair throughout the remainder of the case, to which
he responded, “I don’t anticipate it being a problem. I thought I
would [have] been remiss [if the recent burglary was not
disclosed].” Juror No. 4 stated, “I understand each incident is an
individual incident.” When asked by the defense whether the
incident was “going to impact in any way your ability to be fair at
this time,” Juror No. 4 stated, “I don’t foresee that.”
The trial court found that Juror No. 4 “was clear that the
incidents are two separate incidents. He doesn’t believe in any
way that Mr. Moore is connected. . . . I think he just wanted to
bring it to our attention for the reasons he stated. I don’t think

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he’s impaired in any way in rendering a just verdict accordingly.”
The court therefore denied Moore’s motion to excuse Juror No. 4.
Moore was convicted of residential burglary, and prior
conviction allegations were found to be true. He was sentenced to
19 years six months in state prison. (Pen. Code, §§ 459, 667
subd. (a)(1).) He timely appealed.
DISCUSSION
Moore argues Juror No. 4 was unable to remain unbiased
during trial, thus depriving Moore of a fair and impartial jury.
“In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury . . . .”
(U.S. Const., 6th Amend.) The California Constitution declares
that “[t]rial by jury is an inviolate right and shall be secured to
all . . . .” (Cal. Const., art. I, § 16.)
A trial court may “discharge a juror at any time before or
after the final submission of the case to the jury if, upon good
cause, the juror is ‘found to be unable to perform his or her
duty.’ ” (People v. Bennett (2009) 45 Cal.4th 577, 621.) A juror
who harbors “actual bias” against a defendant is unable to
perform his or her duty. (Code Civ. Proc., § 227, subd. (d).)
Actual bias is “the existence of a state of mind on the part of the
juror in reference to the case, or to any of the parties, which will
prevent the juror from acting with entire impartiality, and
without prejudice to the substantial rights of any party.” (Code
Civ. Proc., § 225, subd. (b)(1)(C); see People v. Nesler (1997) 16
Cal.4th 561, 581 [“An impartial juror is someone ‘capable and
willing to decide the case solely on the evidence’ presented at
trial”].) A juror’s inability to perform “must appear in the record
as a ‘demonstrable reality’ and bias may not be presumed.”
(People v. Bennett, supra, at p. 621.)

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That a juror in a burglary trial had himself suffered a
burglary either in the past or during trial is not itself grounds for
disqualification. (People v. Martinez (1962) 206 Cal.App.2d 809,
813-814 [juror was a prior burglary victim]; People v. Manriquez
(1976) 59 Cal.App.3d 426, 428-429 [juror was the victim of a
robbery during trial].)
We review for abuse of discretion a trial court’s decision to
retain an allegedly biased juror. (People v. Bennett, supra, 45
Cal.4th at p. 621.)
Here, Juror No. 4 candidly disclosed burglaries he had
suffered before and during trial, and stated he would continue to
be fair and understood that “each incident is an individual
incident.” That he immediately reported the second incident
shows that Juror No. 4 desired to fulfill his duty to the best of his
ability.
Moore argues that the probability of bias was substantial
because Juror No. 4 was victimized by the same type of crime as
was alleged against Moore. But the ransacking of Juror No. 4’s
truck and garage were dissimilar from the crime of which Moore
was accused. Unlike Moore, who destroyed both a sliding glass
door and a security alarm and stole several items, the burglar of
Juror No. 4’s truck and garage broke nothing and stole nothing,
but simply “. . . went into the garage and pulled out a bunch of
stuff.” The dissimilarity of the two incidents supports the trial
court’s conclusion that Juror No. 4 formed no actual bias.
Although Moore speculates that Juror No. 4 was biased and
unable to deliver a fair verdict, speculation does not establish a
“demonstrable reality” of bias.
We conclude the trial court acted within its discretion in
retaining Juror No. 4.

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
CHANEY, Acting P. J.
We concur:
JOHNSON, J.
BENDIX, J.

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