P. v. Black

Filed 10/25/12 P. v. Black CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLES BLACK,
Defendant and Appellant.
A131693
(Alameda County
Super. Ct. No. 163496)
Defendant was convicted of two counts of animal cruelty after he was twice
videotaped while beating his dog. Defendant contends the trial court deprived him of the
right to a fair and impartial jury by denying his requests to excuse two jurors for cause
and erred by failing to instruct the jury on the lesser included offense of attempted animal
cruelty with respect to one of the charges. We affirm.
I. BACKGROUND
Defendant was charged in an information, filed April 22, 2010, with two counts of
animal cruelty. (Pen. Code, § 597, subd. (a).) Separate incidents of abuse were alleged
to have occurred on June 30, 2009 and February 19, 2010. The information also alleged
defendant had suffered one prior strike conviction (Pen. Code, §§ 667, subd. (e)(1),
1170.12, subd. (c)(1)) and one prior prison conviction (Pen. Code, § 667.5, subd. (b)).
A. Denial of “For Cause” Challenges
During jury selection, two prospective jurors expressed concern about their
respective abilities to serve impartially. The first, M.P., characterized herself as ―a very
devout Hindu‖ who was ―taught to not harm any animals whatsoever.‖ Although M.P.

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said she would ―try‖ to put aside her beliefs, when asked whether she could be
―completely impartial, unbiased,‖ she responded, ―Probably not for this particular case.‖
The second prospective juror, A.D., had been abused as a child, raising concerns in his
mind about his ability to act impartially. Further, he told the court in chambers he
―already sided with the [district attorney], because of what happened today in the
morning and at lunch.‖ Asked to explain, A.D. said he felt defendant‘s conduct in the
courtroom was disrespectful, since he arrived late and was ―singing and stomping his
feet‖ as he entered. When the court denied defendant‘s ―for cause‖ challenges to the two
prospective jurors, he used peremptory challenges to remove them.
A third prospective juror, eventually seated as Juror No. 8, also expressed concern
in a note to the court. In chambers, he explained he was a process server who had been
sent earlier that year to serve an unlawful detainer summons on a ―Charles Black‖ at an
Oakland Housing Authority building. Because this Charles Black was never at home
when Juror No. 8 attempted to serve him, the juror did not know whether defendant was
the same person as the subject of the summons. Although he had served residents of the
Housing Authority ―[o]ver 100 times,‖ this attempt at service stood out in Juror No. 8‘s
memory because he received a police escort, which only occurred if ―guns and/or drugs
were involved in the reason for the eviction.‖ The juror said he would ―try‖ not to let the
incident affect his consideration of the case and promised he would not disclose it to
other jurors. Defense counsel requested Juror No. 8 be excused for cause ―in an
abundance of caution.‖ The court declined the request, concluding the juror was
conscientious and noting there was no evidence of a gun in this case.
After exhausting his peremptory challenges, defendant sought additional
peremptory challenges from the court in order to remove Juror No. 8 and another
unspecified juror. The request was denied.
B. Evidence of the June 30 Incident
The primary witnesses at trial were defendant‘s neighbors. One neighbor in
particular, whose home had a view of the rear balcony of defendant‘s apartment,
witnessed several incidents of abuse. On these occasions, defendant would typically take

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the dog onto the balcony, reprimand it, and kick it ―pretty hard‖ or hit it with a mop
handle. The dog would yelp and cower. The neighbor found defendant‘s conduct so
―appalling‖ that he decided to videotape it.
On June 30, 2009, the neighbor was in his bedroom when he heard defendant‘s
voice and a dog yelping. The neighbor grabbed his camera and went to a sliding glass
door from which he could view defendant‘s balcony. As he was filming, the neighbor
saw defendant raise the mop over his head, using both hands, and bring it down on the
dog. He swung at the dog ―no more than three times,‖ each time striking the dog ―across
the back anywhere from the back of the neck to all the way down to the rear.‖ The dog
was yelping as defendant reprimanded it.
The resulting video of the events was of poor quality. Only a portion of
defendant‘s balcony was visible; the remainder was obscured by vegetation.1 Bright
sunlight from the left bleached out details. Although defendant was visible throughout
most of the video, the dog was not. Early in the video, the dog was twice heard yelping
suddenly and there was shouting, but at those times defendant‘s body was largely
obscured, and the dog could not be seen. At the critical point on which the neighbor
focused his testimony, slightly more than one minute into the video, defendant was
visible walking around the balcony carrying the mop or broom with the head down. At
certain points he made sudden movements, appearing to thrust the mop or broom
downward one time and to swing it another time, and an unseen dog was heard crying out
loudly at least five separate times. It was not possible to determine from the video,
however, that defendant‘s movements caused the dog‘s cries.
In his own testimony about the June 30 incident, defendant said he went to the
balcony where the dog had been put after he noticed it had chewed an electrical cord.
When the dog growled at him, defendant picked up the mop ―to signify that his defiance
wouldn‘t be tolerated.‖ Defendant acknowledged he used the mop to ―make contact‖
1 The neighbor testified he had a much better of view of the events on the balcony
than is suggested by the video.

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with the dog, but he denied raising the mop over his head and bringing it down forcefully.
Instead, he used it to ―push or . . . touch‖ the dog twice. He then reentered his apartment.
The neighbor had also recorded the February 2010 incident underlying the second
count. This video was of far better quality, unmistakably showing defendant swinging a
steel axe over his head and bringing it down on the cowering dog, striking the animal
repeatedly. Defendant shouted angrily at the animal as it squealed in pain, in a manner
identical to the cries heard on the June 30 video. A veterinarian‘s subsequent
examination confirmed the dog was wounded by the strikes.
Defendant was convicted on both counts and sentenced to a four-year prison term.
II. DISCUSSION
Defendant contends (1) his right to a fair and impartial jury was violated when the
court refused to excuse Prospective Jurors M.P. and A.D. for cause, leaving him without
sufficient peremptory challenges to remove Juror No. 8; and (2) the trial court erred by
failing to instruct the jury on the lesser included offense of attempted animal cruelty with
respect to the June 30 incident.
A. Right to an Impartial Jury
Defendant contends the trial court erred in refusing to excuse for cause M.P and
A.D., which required him to exercise peremptory challenges to prevent these prospective
jurors from being seated. Although defendant does not contend the trial court erred in
refusing to excuse Juror No. 8 for cause, he argues his right to a fair and impartial jury
was violated because the unwarranted use of two peremptory challenges to remove the
other prospective jurors left him unable to use a peremptory challenge to remove Juror
No. 8.
The Attorney General does not defend the trial court‘s decisions not to excuse
M.P. and A.D. Instead, she contends defendant‘s right to a fair and impartial jury was
violated only if his use of peremptory challenges to remove these two jurors left him
unable to prevent the seating of an ―incompetent‖ juror, which she defines as a
prospective juror who should have been excused for cause. Because defendant does not
contend Juror No. 8 should have been excused for cause, it is argued, he has failed to

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demonstrate he was deprived of a fair and impartial jury. The issue before us is therefore
not the propriety of the trial court‘s conduct but the nature of defendant‘s burden in
demonstrating a violation of his right to a fair and impartial jury.
A defendant accused of a crime has a constitutional right to a trial by unbiased,
impartial jurors. (People v. Nesler (1997) 16 Cal.4th 561, 578.) ― ‗To find actual bias on
the part of an individual juror, the court must find ―the existence of a state of mind‖ with
reference to the case or the parties that would prevent the prospective juror ―from acting
with entire impartiality and without prejudice to the substantial rights of either party.‖ ‘ ‖
(People v. Horning (2004) 34 Cal.4th 871, 896.)
In its decisions addressing the specific issue raised by defendant, our Supreme
Court has been of two minds. In People v. Bittaker (1989) 48 Cal.3d 1046 (Bittaker), the
defendant claimed he was deprived of his right to a fair and impartial jury because he had
been required to use peremptory challenges to remove five prospective jurors who should
have been excused for cause and was granted only two compensatory peremptory
challenges by the court. (Id. at p. 1087.) Responding to the argument, the court held
―defendant must show that he used a peremptory challenge to remove the juror in
question, that he exhausted his peremptory challenges [citation] or can justify his failure
to do so [citation], and that he was dissatisfied with the jury as selected. But if he can
actually show that his right to an impartial jury was affected because he was deprived of
a peremptory challenge which he would have used to excuse a juror who sat on his case,
he is entitled to reversal; he does not have to show that the outcome of the case itself
would have been different.‖ (Id. at pp. 1087–1088, italics added.) Accordingly, the court
held the defendant was required to show the trial court erred in denying at least three
challenges for cause to gain a reversal, since the court provided two additional
peremptory challenges. (Id. at p. 1088.) Because the court found only two of the denials
erroneous, it did not reverse. (Id. at pp. 1088–1091.) There is no question the
highlighted language from Bittaker supports defendant‘s contention.
More recently, in People v. Yeoman (2003) 31 Cal.4th 93 (Yeoman), the court
appeared to change its view, holding a defendant‘s use of a peremptory challenge to

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remove a juror who should have been excused for cause is not prejudicial unless it
resulted in the seating of an ―incompetent‖ juror. (Id. at p. 114.) The court reasoned, ―To
prevail on such a claim, defendant must demonstrate that the court‘s rulings affected his
right to a fair and impartial jury. [Citation.] None of the four prospective jurors [whom
the defendant unsuccessfully challenged for cause] could possibly have affected the
jury‘s fairness because none sat on the jury. [Citations.] The harm to defendant, if any,
was in being required to use four peremptory challenges to cure what he perceived as the
trial court‘s error. Yet peremptory challenges are given to defendants subject to the
requirement that they be used for this purpose. [Citation.] While defendant‘s compliance
with this requirement undoubtedly contributed to the exhaustion of his peremptory
challenges, from this alone it does not follow that reversible error occurred. . . . [T]he loss
of a peremptory challenge in this manner ‗ ―provides grounds for reversal only if the
defendant exhausts all peremptory challenges and an incompetent juror is forced upon
him.‖ ‘ [Citations.] Here, defendant cannot show his right to an impartial jury was
affected because he did not challenge for cause any sitting juror. No incompetent juror
was forced upon him.‖ (Ibid., italics added by Yeoman.) Although Yeoman cited
Bittaker without acknowledging any disagreement (Yeoman, at p. 114), it appears to
impose a stricter standard for prejudice than Bittaker by requiring the defendant to
demonstrate that the exhaustion of his peremptory challenges resulted in the seating of an
―incompetent‖ juror, rather than merely a juror whom the defendant would have preferred
to remove. This interpretation is reinforced by People v. Bonilla (2007) 41 Cal.4th 313,
340, which construes Yeoman as referring to ―a juror incompetent under Wainwright v.
Witt [(1985)] 469 U.S. 412.‖ While Wainwright does not to use the term ―incompetent,‖
it discusses jurors ―properly excused for cause.‖ (Id. at p. 430.)
The Supreme Court later appeared to retreat from its position in Yeoman. In
People v. Blair (2005) 36 Cal.4th 686 (Blair), the court held, ―To establish that the
erroneous inclusion of a juror violated a defendant‘s right to a fair and impartial jury, the
defendant must show either that a biased juror actually sat on the jury that imposed the
death sentence, or that the defendant was deprived of a peremptory challenge that he or

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she would have used to excuse a juror who in the end participated in deciding the case.‖
(Id. at p. 742, italics added.) The court found no reversible error because the defendant
used peremptory challenges to remove the prospective jurors challenged for cause, had
not identified any sitting juror whom he challenged for cause, and ―fail[ed] to identify
any juror whom he would have excused had he not used his peremptory challenges to
remove [the jurors challenged for cause].‖ (Ibid.; see also People v. Alfaro (2007)
41 Cal.4th 1277, 1314 [―Defendant has not identified any person who sat on her jury
panel whom she would have peremptorily challenged but for the circumstance that she
had used her final challenge to excuse another prospective juror‖].) Although Blair cited
both Bittaker and Yeoman, it did not acknowledge the apparent disagreement between
them.2
In People v. Baldwin (2010) 189 Cal.App.4th 991 (Baldwin), the court discussed
Bittaker and Yeoman at length, ultimately concluding Yeoman did adopt a stricter
standard than Bittaker. Under Yeoman, the court held, ―the defendant cannot show that
his right to an impartial jury was affected by the denial of the for-cause challenges, unless
the trial court erroneously denied a challenge for cause to a sitting juror.‖ (Baldwin, at
pp. 1000–1001.) In so holding, Baldwin equated Yeoman‘s ―incompetent juror‖ with a
juror who should have been removed for cause, in the process rejecting an argument
identical to that raised by defendant here. (Baldwin, at p. 1001.) Although Blair had
been decided in the interim since Yeoman, Baldwin did not mention Blair. As a result,
we are faced with a 2003 Supreme Court decision apparently rejecting defendant‘s
position, a more recent Supreme Court decision from 2005 accepting it, and a 2010 Court
of Appeal decision definitively rejecting it, but without discussing the conflicting 2005
Supreme Court decision.
2 An even more recent decision, People v. Mills (2010) 48 Cal.4th 158, reaffirms
Yeoman‘s requirement that an ―incompetent‖ juror remain on the jury. (Mills, at p. 187;
see also People v. Farley (2009) 46 Cal.4th 1053, 1096 [― ‗So long as the jury that sits is
impartial, the fact that the defendant had to use a peremptory challenge to achieve that
result does not mean the Sixth Amendment was violated‘ ‖].)

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We also conclude we must reject defendant‘s argument, but we rely on a parallel
line of Supreme Court authority not mentioned by Baldwin or, for that matter, the parties.
In People v. Gordon (1990) 50 Cal.3d 1223 (Gordon), overruled on another ground in
People v. Edwards (1991) 54 Cal.3d 787, 835, which was cited by Yeoman, the court
rejected the argument that the use of a peremptory challenge to remedy a trial court‘s
erroneous denial of a ―for cause‖ challenge results in a constitutional violation. In
Gordon, the defendant challenged three jurors for cause during voir dire. One of the
jurors was never seated, but the defendant was required to use peremptory challenges to
remove the other two. (Id. at p. 1246.) The court held that a trial court‘s erroneous
failure to excuse jurors challenged for cause ―is not automatically reversible but is subject
to scrutiny for prejudice under harmless-error analysis.‖ (Id. at p. 1247.) Although no
challenged juror was actually seated, the defendant contended ―he was harmed because
he was effectively denied two peremptory challenges when he chose to exercise those
challenges to ‗cure‘ the ‗error.‘ ‖ (Id. at p. 1248.) The court rejected the claim of
prejudice, noting, ―A criminal defendant may, and indeed must, exercise the peremptory
challenges granted him by law ‗to remove prospective jurors who should have been
excluded for cause‘ [citation]—that is to say, to cure the very kind of error claimed here.‖
(Ibid.)
In a footnote, Gordon rejected the defendant‘s constitutional claims, explaining
the right to a fair and impartial jury was not violated because no juror challenged for
cause actually sat on the jury and ―the court‘s refusal to remove the three prospective
jurors for cause did not infringe defendant‘s right to due process by arbitrarily depriving
him of his full complement of peremptory challenges. Since peremptory challenges are a
creation of state law and not constitutionally required, the right to exercise such
challenges would be denied or impaired only if the defendant did not receive what the
law provides. Although at the time relevant here state law gave capital defendants 26
peremptory challenges [citation], it did so subject to the requirement that the defendant
exercise those challenges to cure erroneous refusals to excuse prospective jurors for cause
[citation].‖ (Gordon, supra, 50 Cal.3d at p. 1248, fn. 4.) Gordon‘s holding on this point

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has been summarily reaffirmed by the Supreme Court at least twice, most recently last
year. (People v. Clark (2011) 52 Cal.4th 856, 902 [rejecting under Gordon the argument
―because the court‘s rulings compelled [the defendant] to use his peremptory challenges
to excuse jurors who should have been excused for cause, he was deprived of his federal
constitutional right to a state-created liberty interest in 20 peremptory challenges‖];
People v. Weaver (2001) 26 Cal.4th 876, 913.)
Defendant‘s argument is legally indistinguishable from the argument rejected in
Gordon. Defendant‘s argument is not that his right to a fair and impartial jury was
compromised because a juror who should have been excused for cause actually sat on his
jury. Rather, he argues he was prejudiced because his need to remedy the trial court‘s
erroneous failure to excuse two jurors for cause left him unable to remove Juror No. 8, a
sitting juror whom he would otherwise have removed using a peremptory challenge. In
the absence of a demonstration that Juror No. 8 should have been removed for cause, this
argument is no different from the general claim made in Gordon of prejudice from the
unnecessary use of peremptory challenges. Defendant has merely identified a particular
juror whom he would have removed had he not been required to exhaust his peremptory
challenges.3
Defendant argues that an incompetent juror should be defined under Yeoman as
one who drew a ―for cause‖ challenge from defense counsel, without regard to the merits
of that challenge, contending ―[i]ncompetence in this context is ultimately nothing more
than [defense] counsel‘s opinion that a prospective juror is not fit to sit on the panel.‖
We recognize this position is superficially consistent with Yeoman’s observation that
―defendant cannot show his right to an impartial jury was affected because he did not
challenge for cause any sitting juror. No incompetent juror was forced upon him.‖
(Yeoman, supra, 31 Cal.4th at p. 114.) Read in context, however, Yeoman’s observation
is not intended to define an incompetent juror as one who has drawn a challenge for
3 Defendant‘s reply brief confirms he does not contend the trial court erred in not
excusing Juror No. 8 for cause. In any event, having reviewed the record with respect to
Juror No. 8, we find no error in the trial court‘s denial of defendant‘s challenge.

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cause. Rather, Yeoman‘s point is that a challenge for cause is a necessary prerequisite to
a defendant‘s demonstration of prejudice, since if no juror challenged for cause sat on the
jury, the defendant is legally precluded from claiming the jury contained an incompetent
juror.
Further, under the constitutional analysis of Gordon, the right to a fair and
impartial jury is not violated unless a juror who should have been removed for cause—
that is, a legally biased juror—actually sat on the jury. As Gordon explained, the loss of
a peremptory challenge used to remove a juror who should have been removed for cause
does not alone constitute a constitutional violation because (1) peremptory challenges are
not constitutionally required, and (2) they are granted under state law in part for just this
purpose—to avoid prejudice as a result of a trial court‘s erroneous failure to remove a
juror for cause. (Gordon, supra, 50 Cal.3d at p. 1248, fn. 4.) Because the privilege
granted by a peremptory challenge is not constitutionally required, a defendant‘s loss of
the ability to remove a juror who is not biased, but whom counsel believes to be
unsuitable, does not rise to the level of a constitutional violation. Further, because
peremptory challenges are granted in part to allow the parties to avoid prejudice from a
trial court‘s wrongful denial of a ―for cause‖ challenge, there is no loss of state-granted
rights in the use of peremptory challenge for this purpose. Accordingly, as Gordon
implicitly holds, a defendant must show the use of a peremptory challenge to remove a
juror who should have been excused for cause left him or her unable to prevent the
seating of another juror who should have been excused for cause before a constitutional
violation will be found. Because defendant does not argue Juror No. 8 should have been
excused for cause, he has failed to demonstrate a violation of his right to a fair and
impartial jury.
B. Lesser Included Offense Instruction
Defendant contends the trial court failed to fulfill its sua sponte duty to instruct the
jury on the lesser included offense of attempted animal abuse with respect to the charge
based on June 30 incident.

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― ‗The trial court is obligated to instruct the jury on all general principles of law
relevant to the issues raised by the evidence, whether or not the defendant makes a formal
request.‘ [Citations.] ‗That obligation encompasses instructions on lesser included
offenses if there is evidence that, if accepted by the trier of fact, would absolve the
defendant of guilt of the greater offense but not of the lesser.‘ ‖ (People v. Rogers (2006)
39 Cal.4th 826, 866.) In other words, the duty to instruct on lesser included offenses
exists only if there is substantial evidence supporting a jury determination that the
defendant ―was in fact guilty only of the lesser offense.‖ (People v. Parson (2008)
44 Cal.4th 332, 348–349.) ― ‗As our prior decisions explain, the existence of ―any
evidence, no matter how weak‖ will not justify instructions on a lesser included offense,
but such instructions are required whenever evidence that the defendant is guilty only of
the lesser offense is ―substantial enough to merit consideration‖ by the jury. [Citations.]
―Substantial evidence‖ in this context is ― ‗evidence from which a jury composed of
reasonable [persons] could . . . conclude[]‘ ‖ that the lesser offense, but not the greater,
was committed.‘ ‖ (People v. Moye (2009) 47 Cal.4th 537, 553.)
We find no error here because there was no substantial evidence supporting a jury
finding that defendant attempted, but failed, to commit animal cruelty. The testifying
witnesses presented the jury with two conflicting stories. The neighbor testified
defendant struck the dog forcefully with a mop or broom handle. Defendant
acknowledged using the mop to ―make contact‖ with dog, but he denied any cruelty,
saying he used it merely to ―push or . . . touch‖ the dog twice. The images on the video
are not clear enough to determine what defendant was doing, although the auditory
evidence, which featured repeated heart-rending cries from the dog, was consistent with a
finding of harm. Accordingly, there was evidence to support both conviction and
acquittal of the charged crime, depending upon which witness the jury believed. No
witness provided evidence to support a finding defendant intended and attempted, but
failed, to abuse the dog.
Defendant‘s argument is based on the video, which, he contends, shows him
―lunging at something near the screen door‖ but does not show him actually striking the

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dog. If the jury believed the video reflected the view available to the neighbor, he argues,
the jury could have concluded defendant tried to harm the dog but found insufficient
evidence to conclude he actually succeeded. The argument fails for two reasons. First,
the evidence of the video is not clear enough even to support a finding defendant
attempted to strike the dog. At best, it showed defendant moving the mop in a suggestive
manner. It provides no reliable evidence, standing alone, that defendant acted in a
manner consistent with an intent to harm the dog. If the jury concluded, as defendant
argues, that the video accurately reflected what the neighbor saw, it would have acquitted
defendant. Second, the argument considers the video in isolation, without taking account
of the testimony of the two eyewitnesses to the events. Neither witness testified
defendant failed to make contact with the dog. The neighbor said defendant struck the
dog violently, as he had done in the past. Defendant acknowledged making contact with
the dog, but he denied any attempt to abuse. Accordingly, the eyewitness testimony
precluded any interpretation of the video as a failed attempt at abuse, and any such
finding by the jury would have been speculation. The trial court was therefore under no
duty to instruct on attempt.
III. DISPOSITION
The judgment of the trial court is affirmed.
_________________________
Margulies, J.
We concur:
_________________________
Marchiano, P.J.
_________________________
Dondero, J.

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