People v. Glenn

Opinion

HOLLENHORST, Acting P. J. A jury convicted James Glenn of two counts of committing lewd and lascivious acts on a minor (Pen. Code, § 288, subd. (a)), one count of attempting such acts (Pen. Code, §§ 664/288, subd. (a)), and two counts of indecent exposure (Pen. Code, § 314, subd. 1). He was sentenced to prison and appeals, claiming that there was error in the constitution of the jury, that the evidence was insufficient to sustain one of the counts, that certain physical evidence should not have [620]been admitted, that the trial court should not have denied his motion for a transcript of his earlier trial, that he should not have been subject to impeachment with a prior conviction, that testimony of an expert was improperly admitted, and that jury instruction error occurred. We reject his contentions and affirm.

Facts

Glenn entertained the three victims, preadolescent boys, in his apartment by showing them sexually explicit films on his VCR. He touched one victim on his penis, attempted to do the same to another, and touched the third on his behind. Glenn also exposed himself and masturbated in the boys’ presence. These acts occurred on various dates during the summer of 1988.

1. Jury Selection

During jury selection, the defense exercised four peremptory challenges. After using the fourth, it announced twice that it was satisfied with the jury as constituted. Immediately after the second announcement, the prosecution stated that it, too, was satisfied with the jury. At that point, there were 14 people on the panel. The court explained that it intended to swear in all 14 and have them listen to the trial. Then, when the evidence had been presented, the clerk of the court was to randomly select the names of two of the fourteen, and those individuals would be designated the alternates and would not participate in deliberations unless one of the twelve had to be removed. The court stated its reasons for doing so was to ensure that the two people who were ultimately designated as alternates would pay as much attention to the trial as they would if they believed they were regular jurors. Neither defense counsel nor the prosecutor objected to this proceeding or made any comment upon it whatsoever. At the close of evidence, when the clerk randomly selected two jurors to serve as alternates, the defense was once again silent.

Now, for the first time, Glenn objects to this procedure, claiming it violates constitutional and statutory law and because of this, he is entitled to reversal of his conviction with no retrial due to double-jeopardy concerns. We disagree.