Metropolitan News-Enterprise


Wednesday, April 3, 2002


Page 3


C.A. Throws Out Murder Conviction, Says Holdout Juror Improperly Removed


By a MetNews Staff Writer


The Court of Appeal for this district has granted freedom to two men convicted in what police said was a gang-related murder at a Rosemead night club.

In an unpublished opinion filed Friday, a divided panel of Div. Five said Los Angeles Superior Court Judge Morris B. Jones improperly removed a holdout juror. It ordered that Lac Vinh Du and Tuong Vinh Du be released, concluding that a new trial on one count of second degree murder and three counts of attempted murder would violate their right to be free from double jeopardy.

The pair were among six people stopped by police as they drove from the scene of the 1994 shooting at the Rose Room. Tuong Vinh Du told police he fired a gun into the crowd outside the club because he was afraid.

The jury found both defendants guilty after Jones replaced one of the jurors with an alternate.

The removed juror was identified only as No. 5. Jones acted after other jurors sent the judge a note complaining that she had made up her mind, would not explain why, and was “not willing to further deliberate concerning her actions.”

Jones questioned the jurors individually. Several jurors complained that No. 5 told them her mind was “made up,” that there was “nothing you can say” that might cause her to change it, and that she “didn’t need to” explain. They said she would not “give any kind of reason” for her position other than “reasonable doubt,” which she repeated over and over again, although one juror said No. 5 would “begrudgingly” discuss the facts of the case.

Juror No. 5 told the judge she was following his instructions, that she did not believe the majority were entitled to decide the case for her, and felt that “we have to do it individually”

Jones explained his reasons for removing the juror:

“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 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.”

The defense lawyers objected to No. 5’s removal, to which Jones responded that they had “an appellate issue.”

Lac Vinh Du was sentenced to 16 years to life in prison and Tuong Vinh Du to 33 years, eight months to life.

The Court of Appeal affirmed their convictions and sentences in 1998. But the Supreme Court granted review, then sent the case back for reconsideration after it decided People v. Cleveland (2001) 25 Cal.4th 466, clarifying the standard for removal of jurors under Penal Code Sec. 1089.

Cleveland provides that once a reasonable period of time has passed for deliberation, a juror cannot be removed under Sec. 1089 unless there is a “demonstrable reality” that a juror is “unable to perform his duty.”

In the case of the Dus, Justices Orville Armstrong and Richard Mosk concluded that the defendants were entitled to a new trial under Cleveland. Presiding Justice Paul A. Turner dissented from Armstrong’s opinion, filed Friday.

The record, Armstrong said, showed that No. 5 had participated in deliberations, mentioning certain pieces of evidence which she said were consistent with the defense claims. The other jurors’ comments, the justice said, “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.”

Armstrong said it was “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.”

Armstrong went on to say that the defendants cannot be retried because “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.” He cited People v. Hernandez (2002) 95 Cal.App.4th 1346, a recent decision in which this district’s Div. Four said that allowing retrial after a defense-leaning juror has been improperly removed would render the constitutional protection against double jeopardy “meaningless.”

Turner, dissenting, argued that Jones acted within his discretion under Cleveland. He also said that Hernandez was incorrectly decided and that the proper remedy for a Cleveland violation is retrial, not dismissal.

The other jurors’ comments, Turner reasoned, showed that Juror No. 5 went home after the first partial day of deliberations, made up her mind that the defendants were not guilty, and returned the next day without deliberating further. “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.”

Turner also bemoaned the implications of the decision to free the defendants.

“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,” he wrote. “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.”

Hernandez, he added, is contrary to controlling decisions of the U.S. Supreme Court and California Supreme Court.

The case is People v. Du, B110122.


Copyright 2002, Metropolitan News Company