Elam

To the extent the majority finds error with regard to the removal of Juror No. 3 (pt. VII, pp. 313-318), I dissent. In my view, the majority’s conclusion ignores the record.

The foreman’s note said “[tjhere [was] a perception problem with Juror No. 3[, p]ossibly a language understanding. Help.” When questioned by the court, the foreman (Juror No. 6) said the majority of the jurors felt that Juror No. 3 was “not understanding the process, maybe the law here. We are having trouble understanding him, and we feel he is having problems trying to explain different points of view. We don’t think he is grasping the big picture.”

When questioning Juror No. 3, the trial court was unable to understand several of the juror’s answers and had to ask him to repeat himself. At one point, the court stated, “I am having a little trouble [understanding you]. You do have a pronounced accent.” Juror No. 3 agreed, responding, “Yes, I have an accent” (although he insisted there was “no language problem”). Although the record is not clear, it appears that his primary language is Tagalog (he grew up in “Hawaii, the Philippines, [and] Guam,” with Spanish-speaking parents). At the time of trial, Juror No.…

*302 Opinion

Introduction

Defendant Javontie Elam appeals from a judgment entered after a jury convicted him of assault with intent to commit a sexual felony, forcible oral copulation (Pen. Code, § 220), one count of misdemeanor or felony sexual battery (id., § 243.4, subd. (a)) and one count of misdemeanor sexual battery (id., subd. (d)(1)). Defendant admitted he previously had been convicted of two serious or violent felonies (id., §§ 667, 1170.12) for which he had served prison terms within the meaning of Penal Code section 667.5, subdivision (b). After denying defendant’s request to strike a prior conviction, the trial court sentenced defendant to state prison for the term prescribed by law. We reverse the judgment.

Statement of Facts

While Darlene H. was working with defendant as an usher at the Music Center on January 5, 1999, defendant placed his hand on Darlene’s breasts. She said, “No, I don’t do that. I don’t play like that.” She elbowed defendant to remove his hand. Defendant acted as if it were a joke, then walked away. On the following day, defendant called Darlene a bitch. She reported the incident to her supervisor.

On June 26, 1999, Sirena T. was waiting in…

Defendant Javontie Elam appeals from a judgment entered after a jury convicted him of assault with intent to commit a sexual felony, forcible oral copulation (Pen. Code, § 220), one count of misdemeanor-or-felony sexual battery ( id., § 243.4, subd. (a)) and one count of misdemeanor sexual battery ( id., subd. (d)(1)). Defendant admitted he previously had been convicted of two serious or violent felonies ( id., §§ 667, 1170.12) for which he had served prison terms within the meaning of Penal Code section 667.5, subdivision (b). After denying defendant's request to strike a prior conviction, the trial court sentenced defendant to state prison for the term prescribed by law. We reverse the judgment.

While Darlene H. was working with defendant as an usher at the Music Center on January 5, 1999, defendant placed his hand on Darlene's breasts. She said, "No, I don't do that. I don't play like that." She elbowed defendant to remove his hand. Defendant acted as if it were a joke, then walked away. On the following day, defendant called Darlene a bitch. She reported the incident to her supervisor.

On June 26, 1999, Sirena T. was waiting in the parking lot with Diana and…