P. v. Mosely

 

 

 

 

Filed 1/27/14  P. v. Mosely
CA2/2

 

 

 

>NOT TO BE PUBLISHED IN THE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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 TWO

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   THETHESIUS MOSLEY,               Defendant and Appellant.

B237690         (Los Angeles County       Super. Ct. No. LA063170)

 

APPEAL from a
judgment of the Superior Court of
Los Angeles County.

Susan Speer, Judge.  Affirmed.

 

            Nancy
J. King, under appointment by the Court of Appeal,
for Defendant and Appellant.

 

            Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Paul R. Roadarmel, Jr., and Daniel C. Chang, Deputy Attorneys
General, for Plaintiff and Respondent.

___________________________________________________

            A
jury convicted defendant Thethesius Mosley of assault to commit a felony
during the commission of a burglary (Pen. Code, § 220, subd. (b))href="#_ftn1" name="_ftnref1" title="">^[1] (count 1); three counts of forcible rape (§
261, subd. (a)(2)) (counts 2, 3 & 4); forcible oral copulation
(§ 288a, subd. (c)(2)) (count 6); sexual penetration by a foreign object
(§ 289, subd. (a)(1)) (count 7); and first degree burglary (§ 459) (count
9).  The jury found true the allegations
that in the commission of counts 2, 3, 4, 6, and 7, defendant personally used a
deadly weapon.  (§ 12022, subd. (b)(1).)  The href="http://www.fearnotlaw.com/">jury also found defendant committed
counts 2, 3, 4, 6, and 7 during the commission of a burglary with the intent to
commit forcible rape.  Defendant admitted
having suffered a prior prison term under section 667.5.

            The trial court sentenced defendant
to state prison for 53 years to life. 
The sentence consisted of the following: 
concurrent terms of 25 years to life in counts 2, 3, and 4, plus one
year for the weapon enhancements in these counts; concurrent terms of 25 years
to life in counts 6 and 7, plus one year for the weapon enhancements in these
counts to be served consecutively to the sentences in counts 2, 3, and 4.  The trial court imposed one additional year
for defendant’s prior prison term enhancement. 
In count 1, the trial court imposed life with the possibility of parole
and stayed the sentence pursuant to section 654.  In count 9, the trial court imposed the high
term of six years, which was stayed pursuant to section 654.

            Defendant appeals on the grounds
that:  (1) the denial of his posttrial >Farettahref="#_ftn2" name="_ftnref2" title="">^[2]> motion violated
his federal constitutional right to href="http://www.fearnotlaw.com/">self-representation and is reversible
per se; (2) the trial court erroneously denied his mistrial motion
following the prosecutor’s improper question to the DNA expert; and (3) the
trial court abused its discretion in failing to remove a sleeping juror.

FACTS

 Prosecution Evidence

            In September 2009, L.J. lived alone in unit 103 on the second
floor of an apartment building in Van Nuys. 
She was 25 years old at the time of trial.  On September 16,
2009, L. went to bed at approximately 10:00 p.m.  She was almost six months pregnant.  Because it was hot, she left open the sliding
door to her balcony.

            Later that night, something woke her
from a deep sleep, and she saw someone standing over her.  L. began screaming and the intruder told her
to shut up or he would kill her.  L. saw
that the intruder, whom she later identified as defendant, was Black, had an
unmaintained Afro hairdo, and was shirtless. 
Defendant was holding a steak knife with a blade approximately four
inches long.

            L. believed defendant would kill
her.  She asked him to leave because she
was pregnant.  Defendant agreed to leave,
but then began talking.  He told L. that
she had better not tell anyone he had been there, and she promised not to.  Defendant kept saying that she would
tell.  He told her he had been in her
apartment before and that the Mexicans told him that she left her door
open.  She did not leave her door open,
but she said she would not do that again. 
Defendant said he had just been released from jail after serving a
13-year sentence, and he did not want to return to jail.

            Defendant then said he needed sex
because he had just been released from jail. 
L. asked why he did not hire a prostitute.  Defendant replied, “If I had money, if you
had money, I would have just left.”  Defendant
told L. he took her cell phone and $7 from her nightstand.  Defendant said that L. was a pretty girl and
after seeing her lying on the bed with her legs up, he could not help
himself.  He told her to lie on the bed.  L. pleaded with defendant to use a condom
because she did not want her baby “to get anything.”  Defendant let her get up to look for a
condom, but she could not find one. 
Defendant told her to get back in the bed.

            At this point, L. was still wearing
a shirt but no underwear.  She did not
remember how it came off.  Defendant got
on top of her and inserted his penis into her vagina.  She looked around for a way to escape and saw
that the knife was next to the pillow. 
When she attempted to slowly move her arm toward the knife, defendant
said, “[W]hat the fuck [are you] doing?” 
She replied, “Nothing, I’m scared, I just wanted to get the knife away
from you so you couldn’t hurt me or my baby.”

            Defendant seemed angry.  It seemed to L. that defendant was having a
hard time putting his penis inside her, but she recalled him putting it inside
her three separate times during the entire time he was there.  In between, he would start talking
again.  Defendant put his mouth on her
vagina and on her rectum.  He also
inserted his fingers in her vagina and rectum. 
He made her put her fingers in her vagina and then in his mouth and
repeat the act.  When L. asked defendant
if she could use the bathroom, defendant said, “no,” and he forced her to
urinate into a foot tub at the foot of the bed. 
She asked if she could wipe herself, and defendant said he wanted to
lick the urine off her.

            Defendant again began talking about
jail and said, “I can’t go back to jail, I can’t let you live.”  At this point, she knew that if she did not
escape, he would kill her.  She ran to the
front door and attempted to get out, but she was shaking so much she could not
undo the locks.  When defendant came out
of the bedroom and ordered her to go back in, she ran out to her second floor
balcony and climbed over the rail.  As
she hung from the rail, she realized she was too high to jump.  She began screaming, and people began coming
outside.  L. yelled, “He’s in the
apartment, he’s in the apartment.”  L.
saw defendant coming down the stairs and yelled, “That’s him.”  When she saw her neighbors begin to chase
after defendant, she pulled herself back onto her balcony and climbed over to
the neighbor’s balcony.

            Daniel Guido lived in an apartment
next to L. and heard her screams.  Guido
then heard her banging on his balcony door. 
He let her in and gave her a towel. 
She was “freaked out,” crying and shaking.  She said that someone had sneaked in and
raped her.  A friend of L.’s came to the
apartment and took L. away.

            Michael Rotella, another neighbor,
also heard a woman screaming, “Help me,” and “He’s trying to kill me.”  Rotella ran outside his apartment and saw a
woman on a balcony.  She was nude from
the waist down.  The woman pointed to a
man running from the scene.  Rotella ran
after him, but, by the time he turned the corner of a building, the man was
“pretty much gone.”  Rotella described
the man as a stocky African-American between five feet eight inches to six feet
in height.  He was not wearing a shirt,
and Rotella was “pretty sure” he had blue sweatpants on.  Rotella’s 911 call was played for the jury.

            Siddeeqah Carter was L.’s neighbor,
and she had known L. since the fifth grade. 
Carter heard L. scream, “Someone’s trying to kill me.”  Carter and her cousin ran outside while
calling 911 and saw L. hanging off her balcony.  L. was screaming, “He’s still in my house . .
. he’s trying to kill me.  I just been
raped.”  Carter saw a man calmly walking
down the stairwell from L.’s apartment. 
When L. screamed, “That’s him,” the man began to run.  Carter described the man as wearing red
shorts, and some type of dirty old shoes. 
He was shirtless.  She and her
cousin ran after him but lost him when he turned a corner.  Carter said the man was dark-skinned, had
wild hair, and was “kind of chunky.”

            At approximately 2:00 a.m. on September 17, Officers
Jose Cuadra and Thomas Bangasser of the Los Angeles Police Department (LAPD)
arrived at L.’s apartment after receiving a call about an attack victim.  Officer Cuadra encountered a Black female who
said she had been raped.  She was
hysterical and crying.  She was wearing
only a T-shirt.  The victim described her
attacker as a male Black with black hair in a two- to three-inch Afro, brown
eyes, and wearing a red shirt and black shorts. 
She said he was approximately 45 to 50 years old.

            Carter told Officer Bangasser that
she saw a Black male walking down the steps from the area of L.’s
apartment.  He was wearing either long
shorts or jeans that were black and a red shirt.  She saw him running toward the rear parking
lot.  He had a two-inch to three-inch Afro.

            LAPD Detective Cheri Roberts of the
sex crimes unit arrived at L.’s apartment at approximately 4:30 a.m.  Detective Roberts did a walk-through of L.’s
apartment and saw a knife on top of the fish tank that matched knives in a
kitchen drawer.  The detective collected
evidence from the apartment, including the bedding, and interviewed L. and
other witnesses.  Detective Roberts
obtained a surveillance video recording from the manager of the apartment
complex.  The surveillance video showed
the rear parking lot of L.’s apartment complex and was recorded on September 17, 2009, between 2:00 a.m. and 2:29 a.m.  The video depicted a male Black, who appeared
to be wearing pants and no shirt, running towards the cars.  He was shown pulling up his pants, and a portion
of his white-colored underwear was visible in the waist area.   The DVD of the
video recording was played for the jury.

            Marie
Meekins lived in the same apartment complex as L.  She saw defendant on September 16, and she
knew him previously through her friend Diane, who was a girlfriend of his.  Diane used to live in unit 103.  Diane moved out in February or March of
2009.  On September 16, Meekins saw
defendant as she walked her daughter home from school.  He was in a car with another friend of Meekins,
and they gave her a ride home.  Defendant
asked Meekins to braid his hair.  Meekins
saw defendant again at approximately 10:00 p.m. at the gate of her
apartment complex.  She refused to do his
hair because he was intoxicated. 
Defendant said to Meekins, “Tell that white bitch Diane that I’m out.”

            Meekins
recalled that in December of 2006, she and Diane were sitting in the bedroom
of Diane’s apartment.  Diane was
terrified of defendant.  The front door
and bedroom door were both locked. 
Defendant knocked on the door and said, “Diane, open the door.”  Diane asked him how he got in the apartment,
and defendant said he climbed in through the balcony.  Defendant had an extension cord, and he
choked Diane and “whooped her on the leg” in front of Meekins.

            As a result of her investigation,
Detective Roberts was able to obtain a photograph of defendant and place it in
a photographic lineup, or six-pack.  On September 22, 2009, she showed the six-pack to
L. and Carter.  L., after being properly
admonished, circled the photograph in position No. 5.  Carter separately viewed the six-pack
photographic lineup and circled the photograph in position No. five.  Upon obtaining the six-pack identifications
from L. and Carter, Detective Roberts contacted defendant’s parole officer and
obtained the location of defendant’s residence, which was his uncle’s house.

            On September 23, 2009, Detective Roberts and her
partner, Detective Luz Montero, conducted a recorded interview of defendant at
the Mission police station. 
Defendant said he used the name Mosley and also the name Johnson and was
43 years old.  Defendant agreed to speak
with the detectives after he was read his Mirandahref="#_ftn3" name="_ftnref3" title="">^[3] rights, which he said he understood.  He told the detectives he was released from
prison on September 16 and went to his uncle’s house.  He did not go to his “old address,” which was
the apartment complex where the rape occurred. 
At the time he was released, he had a “little small Afro,” but his hair
was braided at the interview  He
acknowledged that he and a friend picked Maria up and dropped her off,
referring to Meekins.  Defendant asked
Maria about doing his hair but did not go back to her place.  He acknowledged that he used to live in unit
103 with Diane.  He denied going there
around 10:00 p.m. on September 16, and he
insisted he was at his uncle’s. 
Defendant admitted that he was able to get into Diane’s apartment by
climbing in through the balcony.

            Defendant told the detectives that
he could not understand why his fingerprints would be in the apartment, and he
believed the results of DNA tests should clear him.  He said he had not had sex since he was
released from prison because he had an infection on his penis and it hurt him
to have sex.  The audio recording of the
interview was played for the jury, and the transcript of the interview was
published to the jury.

            Ann Allison is a sexual assault
nurse examiner at the Center for Assault and Treatment Center.  Allison examined L. on September 17, 2009.  Allison’s examination of L.’s body showed a scrape-type
abrasion to her left inner knee.  L.
believed she got that when she jumped to the neighbor’s balcony.  There was redness to the posterior
fourchette, which was consistent with some type of blunt trauma or rubbing or
irritation.  The posterior fourchette is
the most common site of irritation when nonconsensual sex has occurred.  Allison took DNA samples from L. using oral,
genital, and anal swabs following her usual protocol.

            LAPD criminalist Penny Reid
performed DNA testing on the swabs collected from the victim and included in
the rape kit.  These included an external
genital swab and an anal swab.  She also
received an oral swab from defendant. 
She obtained a complete DNA profile for both L. and defendant.

            With respect to the anal swab, Reid obtained
a partial DNA profile that was a mixture of DNA from at least two
individuals.  The major profile
originated from L.  In five of the
fifteen markers of the minor profile, defendant was a possible
contributor.  Reid stated that when one
did not assume that L.’s DNA or defendant’s DNA was in the mixture, only one in
169 people could be included in five of the 15 markers tested.  If one assumed that L. was a contributor, and
of course the swab did originate from her, it was calculated to be approximately
2,000 times more likely that defendant was the second contributor versus an
individual chosen at random.

            In regard to the DNA sample taken
from the knife found at the scene, Reid obtained a DNA mixture profile of at
least two individuals.  L. could not be
excluded as a possible contributor to the DNA mixture profile.  At 14 out of 15 genetic markers, defendant
could not be excluded as a possible contributor to the DNA mixture profile.  Using the assumption of 14 out of 15 genetic
markers, the combination of genetic marker types observed in the swab of the
knife handle occurs in approximately one in 17 million times.

Defense Evidence

            Mehul Anjaria, who runs his own DNA
consulting firm, testified as the defense DNA expert.  He explained the nature of DNA, where it is
found, and how it is commonly analyzed in crime laboratories.  With respect to defendant’s case, Anjaria
reviewed two DNA testing reports, some additional screening reports, and all of
the laboratory bench notes, which consisted of the actual data that came off
the testing instrument.  He also reviewed
the LAPD protocols and the curriculum vitae of the analysts who performed the
work.  He did not find inadequacies in
the way the testing was conducted.  He
did not disagree with the laboratory work or the written reports.  He noted, however, that there was no actual
DNA match to defendant.

            Anjaria believed that in the mixed
sample, where five sites were used in the LAPD statistical calculation, there
may have been other DNA types present that were not detected.  He believed there was degradation in the
sample.  Although defendant could not be
excluded, there were a number of alternative explanations that were unknown.  He believed that the possibility of one
person in 169 being included in the anal swab was the only valid statistic, and
he would not have reported the other figure. 
He believed it was possible that, on the anal swab, defendant’s
inclusion was due purely to chance.  With
respect to the knife handle, Anjaria agreed with the DNA types that the LAPD
crime lab determined, but he emphasized that there were multiple contributors
on the knife swab.  Some contributed a
low level of DNA, and some information could have been missing.  If the low-level peaks were accounted for,
the statistical probability would have been different—perhaps one in the range
of the “10 thousands” (rather than one in 17 million).

DISCUSSION

I.  Posttrial Faretta Motion

            >A.  Defendant’s Argument

>            Defendant
contends that the trial court was without discretion to deny his posttrial >Faretta motion because it was made well
before sentencing.  He also argues that
there was no good basis for denying his request under the factors of >People v. Windham (1977) 19 Cal.3d 121,
128-129.  Finally, defendant argues that
the trial court abused its discretion by relying on the appearance of mental
illness to deny his motion.  Defendant
seeks reversal of the judgment and remand to exercise his right to
self-representation in a motion for new trial and, if denied, resentencing.

            B.  Relevant Authority

            It is well established
that a defendant in a state criminal prosecution has a constitutional right
under the Sixth Amendment to represent himself. 
(Faretta, supra, 422 U.S. at pp. 819–821.) 
However, timeliness and an unequivocal assertion are necessary to invoke
Faretta rights.  (People
v. Windham, supra, 19 Cal.3d at
p. 127-128.)  Also, once a defendant has
chosen to be represented by counsel, his demands that he be permitted to
represent himself are within the trial court’s discretion.  (Id.
at p. 128.)  In assessing a >Faretta motion subject to the trial
court’s discretion, the court should consider the “quality of counsel’s
representation of the defendant, the defendant’s prior proclivity to substitute
counsel, the reasons for the request, the length and stage of the proceedings,
and the disruption or delay which might reasonably be expected to follow the
granting of such a motion.”  (>Windham, at p. 128.)  “‘[I]t also is
established that a midtrial Faretta
motion may be denied on the ground that delay or a continuance would be
required.’”  (People v. Jenkins (2000) 22 Cal.4th 900, 1039; People v. Clark (1992) 3 Cal.4th 41, 110.) 

            >C.  Proceedings Below

>            On November 5, 2009, the trial court addressed
defendant’s request to represent himself. 
The court informed defendant that his attorney calculated his exposure
as 150 years to life and an additional life term.  Defendant said that was why he believed it was
in his best interest to go pro. per.  The
court advised defendant of the dangers of representing himself.  The trial court informed defendant that his
right to self-representation could be terminated by the court if defendant
engaged in any serious misconduct or obstructed the conduct and progress of the
trial.  The court found that defendant voluntarily,
knowingly, and intelligently waived his right to be represented by an attorney
and granted defendant pro. per. status.

            During a proceeding on December 15, 2009, defendant repeatedly
requested advisory counsel, but the trial court denied the request.  On May
17, 2010, standby counsel, Ms. Mojgan Aghai informed the court that
she believed defendant was incompetent to stand trial.  The trial court agreed, described some of
defendant’s behavioral problems, and suspended proceedings.  The court ordered two psychiatrists to
evaluate defendant under section 1368. 
On August 25, 2010, based on the
reports of the appointed psychiatrists, the trial court found defendant
mentally competent to stand trial under section 1368, while expressing deep concerns
about defendant’s ability to remain in pro. per.  The court stated that it was concerned about
defendant’s psychological condition, particularly his bipolar disorder and how
it appeared to affect his behavior in court and ability to put on a rational
defense.  Addressing defendant, the court
stated, “You’ve demonstrated in front of this court tremendous mood swings and
inappropriate emotional outbursts in court just like you demonstrated a moment
ago.  You have a tendency not to follow
the orders of court and constantly interrupt the court and counsel.  You have made gratuitous insulting remarks to
the court and to me personally during the number of appearances you’ve made in
front of me.  Second, I’m concerned about
your ability to control your behavior in and out of the courtroom.  I’m aware that you have been refusing to take
the morning bus to court yesterday and today and you were again acting out and
pounding on the wall of your jail cell in the lockup yesterday.  Third, I’m concerned about your ability to
communicate with the court and jurors due to your thick accent and the misuse
of the English language.  I will at this
time reinstate your pro. per. privileges, but you are again admonished that you
must follow court rules.  You must not
disrupt the dignity or the core integrity of this courtroom.”

            On March 15, 2011, defendant agreed to give
up his pro. per. status and to be represented by his standby counsel at that
time, Rebecca Riley.  A >Marsdenhref="#_ftn4" name="_ftnref4" title="">^[4] hearing was held on June
17, 2011, in which defendant complained about Riley’s representation
during voir dire.  He was upset that
Riley had excused a potential juror who was a genetic counselor because he
believed Riley did not know enough about DNA evidence.  The trial court concluded that there was no
breakdown in the relationship between Riley and defendant and denied the Marsden
motion.

            In the next court session following
the Marsden hearing (June 20, 2011), defendant asked the court
to reinstate his pro. per. status.  The
trial court asked defendant if he was ready to resume jury selection right away
or if he would need time to prepare. 
Defendant said he would need time.  The trial court denied the motion as
untimely.  Defendant said he did not
“want this lawyer.”  The trial court
stated it was denying his right to go pro. per. because he had a “longstanding
pattern of wanting to go pro. per., wanting to be represented.”  The court expanded on its reasons, stating
that defendant had a history of mental illness and disciplinary problems in
court, as evidenced by the fact he was wearing a stealth belt.  The court stated that defendant did not use
the English language properly and it was almost impossible for the court to
understand him, “let alone the court reporter and the jurors.”  Defendant accused the court of being
untruthful and discriminating against him because he was from the South.

            On June 21, 2011, following Riley’s opening
statement, defendant asked the court to forgive him and said that his lawyer
was “so competent that I feel like a crazy man.”  He also asked Riley to forgive him.  When asked if he was withdrawing his request
to go pro. per. again, he replied, “Of course.” 
Defendant said, “I feel in my spirit she got the best of my interest for
justice on my behalf.”

            Two days later, Riley informed the
court that defendant wished to make a Marsden
motion.  Defendant complained that Riley
was not making a sufficient case for a flawed identification.  He also stated there were “underhand under
tailing” and “backroom dealings” occurring and that Riley, being a woman, had
sympathy for the victim.  She also failed
to call the witnesses defendant wanted her to call.  He claimed that the sidebars were backroom
agreements.

Riley responded that she had consulted with the latest
identity expert, who said he could not assist the defense because he believed
the identification of defendant was “just fine.”  With respect to the investigation, Riley
stated that defendant’s investigator, Mr. Mackey, had contacted one of
defendant’s witnesses called Tabitha, and Tabitha informed him that defendant
had tried to contact her and get her to lie about braiding his hair.  Riley did not intend to call Tabitha as a
witness.  Moreover, defendant kept going
back and forth about when his hair was braided, and she found no value in this
issue, especially since defendant himself told police his hair was in a short Afro.  Riley stated she was doing everything she
could to fight for defendant and had never admitted defendant’s guilt to the
prosecutor or anyone else.

Defendant agreed with the court that his attorney was “the
expert,” but proceeded to engage in a long discourse about his hair, the artist’s
sketch, and his identification experts. 
Finally, the trial court stated that defendant was merely repeating
himself and it believed Riley had represented defendant in a forthright and
honest fashion and had a great reputation. 
Defendant said he did not doubt that. 
The court explained that the sidebars were nothing nefarious.  The trial court concluded that there was no
breakdown in the relationship between Riley and defendant that would make it
impossible for her to effectively represent defendant and denied the Marsden
motion.

            On June 29, 2011, after the jury returned
its verdicts, defendant complained to the court that he had not had a fair
trial.  He complained of witnesses that
could have helped exonerate him but that his counsel did not call, and several
other issues of which he had previously complained.  During the discussion about setting a date
for sentencing, defendant made a Faretta request.  The trial court stated it could be discussed
at the next date and proceeded to set the sentencing for July 27, 2011.  At the sentencing hearing on that date, the
court asked defendant if he wanted to proceed with Riley or have her
relieved.  Defendant said he wanted to
get rid of Riley.  The trial court stated
it was going to appoint new counsel for defendant to bring the motions for new
trial based on incompetency of counsel and any other issues the attorney saw
fit to raise.  Defendant said he wanted
to get pro. per. status “because I need to be—I got 90 more days to put my
additional appeal stuff that I know ain’t going to be on the record.”

The trial court asked if there was an attorney present from
the bar panel and then discussed with the bar panel attorney in the courtroom
the amount of time necessary for an attorney to be appointed.  The trial court suggested to defendant that
the matter be continued for a short time for a bar panel attorney to discuss
the motions with him.  Defendant replied,
“Thank you.”  He stated he would like to
speak to the lawyer because he had new evidence.  When the bar panel attorney asked the court
if defendant was pro. per., the trial court said he was not.  At that point, defendant again asked for pro.
per. status because he needed “to go in there and do research.”  The court replied, “The court is declining
the defendant’s motion to return to pro. per. status for the purpose of motions
and sentencing for the following reasons: 
The defendant has demonstrated a proclivity to seek pro. per. status and
then request counsel.  The defendant has
demonstrated that he is unable to follow the rules in and out of the courtroom,
has presented a pattern of disciplinary problems that has disrupted the court
and integrity of this courtroom for many months.  The defendant has a history of mental illness
and mood disorders—that affects his ability to calmly and effectively litigate
issues in this courtroom.  If pro. per.,
these proceedings would be unduly delayed as the defendant has a pattern of
delaying and obstructing the orderly process of this case.  For all these reasons, the defendant’s
request for pro. per. is denied.  You can
take it up on appeal, Mr. Mosley.” 
Defendant began to rail against the judge and the court and continued to
do so until the end of the proceeding, at which time he attempted to knock over
the counsel table and had to be forcibly escorted from the courtroom.

>            D. 
No Abuse of Discretion

            Defendant first argues, citing >People v. Miller (2007) 153 Cal.App.4th
1015 (Miller), that the denial of his
request for self-representation after the rendering of the verdicts was
reversible error.  In >Miller, the defendant made a request after
trial to represent himself at sentencing. 
(Id. at p. 1019.)  Although the request was made two months
before the projected sentencing hearing, the trial court treated it as untimely
and exercised its discretion to deny it.  (Ibid.)  Miller
held that the requirement that a Faretta
motion be made before trial in order to be timely applied only where the
defendant sought to represent himself at trial.  (Miller,
at pp. 1023-1024.)  The defendant’s request
was timely because it concerned only sentencing and was made “well in advance”
of the sentencing hearing, which it deemed “a proceeding separate and distinct
from the trial.”  (Id. at p. 1024.)  The
defendant therefore had an absolute right to represent himself upon his
unequivocal request to do so, provided “he was mentally competent and the
request was made ‘knowingly and intelligently, having been apprised of the
dangers of self-representation.’”  (>Ibid., quoting People v. Welch (1999) 20 Cal.4th 701, 729.)  Since the defendant’s right was absolute,
reversal followed automatically, and the matter was remanded for resentencing.  (Miller,
at pp. 1024-1025.)

            Defendant’s case is distinguishable from
Miller.  In Miller,
the defendant’s request to represent himself was based on his desire to do his
own legal research to “see if anything could help him at sentencing,” at which
proceeding he declared his intention to represent himself.  (Miller,
supra, 153 Cal.App.4th at p. 1020.)  In the instant case, defendant did not
express any interest in the sentencing proceeding; instead, he wanted to
represent himself so that he could present new evidence, including witnesses
that his attorney did not present, and other evidence that would allow him to
“get exonerated off this crime.”  Defendant
also mentioned that he wanted to “put my additional appeal stuff” on the
record.  These issues demonstrate that
defendant wished to relitigate his case rather than prepare for
sentencing.  Even if we assume that some
of his issues were appropriate for a motion for new trial, such a motion is a
matter collateral to the sentencing hearing—indeed, a continuation of the trial
itself.  Unlike the Miller defendant, who wished to represent himself in the new
proceeding—the sentencing hearing—defendant wished to continue the trial and
make a record for appeal.  Furthermore, the trial court would not have been remiss had it found
defendant’s request to be equivocal. 
When the court told defendant that a bar panel attorney would be
appointed, defendant said, “Thank you.” 
Defendant said he wanted to talk to the lawyer.  Defendant insisted on pro. per. status when
he realized he could not have a lawyer and be pro. per.  He appeared to want pro. per. status to have
access to the law library, but also to be represented by an attorney at
sentencing—an attorney who would presumably make the motions defendant wished
him or her to make.  It was clearly within
the trial court’s discretion to grant or deny defendant’s Faretta motion.

            Considering
the totality of the circumstances surrounding defendant’s request, we can find
no abuse of discretion.  The trial court
was well aware of what would ensue if defendant’s motion were granted, having
gone through months of interaction with defendant as a pro. per.
defendant.  A “legitimate concern” of the
trial court is whether defendant’s request “would needlessly delay the
proceedings.”  (People v. Doolin (2009) 45 Cal.4th 390, 454.)  Defendant was granted his >Faretta right on November 5, 2009, after his preliminary
hearing on October 22, 2009.  He relinquished his pro. per. status on March
15, 2011, which means that his self-representation period lasted one year and
four months, all of which was pretrial.  Defendant
continually filed ex parte motions, some of which were not appropriately categorized
as ex parte.  He continually attempted to
relitigate issues.  Defendant repeatedly
asked for continuances while simultaneously refusing to waive time, causing
needless delay.  He would insist on
having a continuance without a waiver of his speedy trial right, and then would
eventually waive time.

            Moreover, although defendant
insisted on going pro. per., he continually asked for “advisory counsel” during
the proceedings.  He consulted with Riley
to the degree that the prosecutor complained to the court that, as he was pro.
per., defendant should be able to handle things on his own.  Defendant asked for funding to have his DNA
expert act as advisory “counsel” during trial in order to help defendant
question witnesses.  He was reminded that
he was held to the same standard as an attorney.  There is no reason to believe such behavior
would not continue if defendant’s pro. per. status were reinstated.  Defendant also failed to properly account for
how his pro. per. funds were used and had to be asked repeatedly for an
accounting.  

Furthermore, a defendant who deliberately engages in
obstructionist misconduct may forfeit his right of self-representation.  (Faretta, supra, 422 U.S. at pp.
834-835, fn. 46; People v. Powers (1967) 256 Cal.App.2d 904, 914-915,
disapproved on another point in People v. Taylor (2009) 47 Cal.4th 850,
881.)  Self-representation is “not a
license to abuse the dignity of the courtroom,” nor to refuse to “comply with
relevant rules of procedural and substantive law.”  (Faretta,
at pp. 834-835, fn. 46.)  On January 26, 2010, during one of the numerous
ex parte hearings he requested, defendant said to the court, “You presentin’
virus is no way—I can say this on the record. 
I’m not—you presentin’ virus, taking sides with—you are supposed to be
like an impound, even-handed.”  Defendant
then began yelling at the court, “I want you off my case.  I want you off my case” repeatedly.  Apparently defendant had worked himself into
a frenzy and had to be handcuffed, at which point he said, “You ain’t got to
cuff me.  I ain’t going to do
nothing.  I’m facin’ fuckin’ life and you
are telling me?  I want advisory
counsel.  What the hell you talking
about?  I’m facing life off these fuckin’
lies.”  Defendant had to be forcibly
removed from the courtroom.  On April 28, 2010, defendant complained to
the court about his first standby attorney and wanted her relieved because she
refused to file certain motions.

Defendant continually accused the court of mistreating him
and said, “You for your own professional reason excuse yourself off my case or
move me to another courtroom.”  When the
court stated it believed it was fair and asked defendant to waive time unless
he wanted to go to trial on May 17, defendant said, “You coming with so much
chicanery and trickery and shenanigans, it don’t make no sense.”  The trial court later warned defendant twice
not to interrupt the court.  On May 11, 2010, the trial court denied
defendant’s petition for writ of habeas corpus. 
The court told defendant that there was no factual or legal basis for
relief, the motion was untimely, and the issues had already been
litigated.  Defendant told the court that
a pro. per. “attorney” got no respect and the court was being more
aggressive.  He stated that “the system
that we’re up under is—have been preplanned and predestined to always keep the Black
man in slavery.  I mean, this is a
slavery court and I know it is and I know my motion had grounds”

>            On June 16, 2011, the trial court ordered
defendant to be restrained by a stealth belt. 
The trial court noted defendant’s aggressive in-court behavior, his 11
disciplinary reports, his threats to Sheriff Department personnel and jail
nurse, his fights with deputy sheriffs, his threat to kill a deputy sheriff,
and his claim to have “killed cops before” and willingness to do it again.  We have
described other instances of defendant’s abuse of the dignity of the
courtroom in the procedural history. 

Defendant also displayed poor communication skills.  Defendant told the court on the day he went
pro. per., “Well, it’s like this here, you know the courts today is—there are
courts they don’t follow the rules of government, they go by what they want to
do.  They basically because I had—I mean,
not to bring this up, but I had—that’s why I say that I have to file a motion
for change of venue or whatever because I also had in the courts—I had jailers
that have took my right to my jury trial.” 
During a discussion of discovery issues, defendant claimed, “It’s just
all assumptions and rumors and gospels and that the position of rumors—okay,
what I’m saying, this case is rumors upon rumors, supposition upon supposition,
gossip is what this whole case is based upon. 
It’s assuming and the assumptions is why some type of theoretical
broadway.”  At the close of the
proceeding, defendant said, “Make sure that you see what I’m talking about
now.  This is scratch—this is like—this
is like—man, this is crazy.  So you all
like to take my rights and say, okay, you know what, you are just another
Willie McGee like junk pro type stuff.”  Defendant
said he would contact the ACLU and the “NCAA for Eric Holder, Justice
Department.”

The record thus shows that defendant “manifested an inability
to conform his conduct to procedural rules and courtroom protocol.”  (People v. Watts (2009) 173
Cal.App.4th 621, 630.)  “[A] defendant
requesting the right of self-representation must possess the ability and
willingness ‘to abide by rules of procedure and courtroom protocol.’  [Citation.]” 
(Id. at p. 629, fn. omitted.) 
Under the relevant factors, therefore, the trial court did not abuse its
discretion.  (See >People v. Windham, supra, 19 Cal.3d at p.
128.)  The quality of Riley’s
representation was not an issue, since defendant made it clear that he would
complain of ineffective assistance of counsel, and Riley could not represent
him on such a claim.  The trial court
reasonably determined that a different attorney was required to present this
claim in a new trial motion.  Although
there was no showing that appellant sought numerous
substitutions of counsel, this factor alone does not undermine the trial court’s
decision.  (See People v. Burton (1989) 48 Cal.3d 843, 854.)  In any event, the record shows that defendant
got rid of his first attorney when he chose to represent himself and then
insisted that his standby counsel, Mojgan Aghai, be dismissed, leading to Riley’s
appointment.  He vacillated between
praising Riley and making Marsden
motions.  As we have noted, defendant’s
reasons for the Faretta request were
inadequate, focusing on relitigating his innocence rather than on the
sentencing hearing.  He had succeeded in
inordinately prolonging the length of the proceedings prior to trial.  Finally, our summary of defendant’s conduct
during trial, which mentions only a few of many incidents, shows that
disruption and delay of the remaining proceedings were inevitable had defendant
been allowed to proceed in pro. per. again.

            As for defendant’s
claim that the trial court abused its discretion by relying on the appearance
of mental illness to deny self-representation, we disagree with defendant’s
premise.  Defendant’s history of mental
illness was mentioned in the trial court’s ruling  only as one of the reasons for his disruptive
behavior.  Early on, defendant himself
asked for an order to get his “psyche meds” that he needed to keep calm.  At the hearing prior to ordering defendant to
be evaluated, Aghai told the court she believed defendant was extremely
paranoid and had tremendous, volatile mood swings.  The court stated, “He has called the court
names such as engaging in slave trade, expressed that the court is prejudiced
because of the occupation of my spouse, and had made other accusatory-type
comments and has essentially had difficulty following the court’s instructions
and orders, such as speaking over the court, not listening to the court.  He’s been admonished several times.  I certainly have not made any observations
that he is psychotic.  I’m certainly not
a psychiatrist.  But it is my opinion
that he is extremely paranoid and that paranoia has affected his ability to
conduct a reasonable defense and he’s made a lot of unreasonable, irrational
requests that he cannot justify.”

            In Indiana v. Edwards (2008) 554 U.S. 164, the United States Supreme
Court clarified that the federal Constitution “permits judges to take realistic
account of the particular defendant’s mental capacities by asking whether a
defendant who seeks to conduct his own defense at trial is mentally competent
to do so.  That is to say, the
Constitution permits States to insist upon representation by counsel for those
competent enough to stand trial under Duskyhref="#_ftn5" name="_ftnref5" title="">^[5] but who still suffer from severe mental
illness to the point where they are not competent to conduct trial proceedings
by themselves.”  (Id. at pp. 177-178; see also People
v. Johnson (2012) 53 Cal.4th 519, 530-531 [Cal. courts may exercise the
discretion permitted in Edwards].)  In this case, defendant was evaluated by two
psychiatrists who apparently reported that defendant suffered from bipolar
disorder.  The court did not improperly
take this information into account when deciding whether to allow defendant to
return to pro. per. status.  The court
had endured a great deal of “emotional outbursts,” “gratuitous insulting
remarks,” and disobedience to the orders of the court, but yet allowed defendant
to return to pro. per. status on August 25,
2010, after his evaluation, despite its deep concerns.  Once defendant relinquished his pro. per.
status, the trial court was not obliged to return to laboring under these
concerns, which had been proved to be more than justified over the ensuing
months. 

             Defendant’s claim on appeal that he
“represented himself capably for many months” is not validated by the
record.  The trial court, given defendant’s
history, which is reflected in the record, was justified in believing that
defendant would do everything he could to delay and obstruct sentencing and to
disregard the court’s orders.  We
conclude there was no abuse of discretion, and defendant suffered no violation
of his constitutional right of self-representation.

II.  Denial of Mistrial
Motion

>            A.  Defendant’s Argument

            Defendant
next claims the prosecutor committed misconduct during her examination of Reid,
the LAPD criminalist, by attempting to elicit inadmissible evidence that was
highly prejudicial to defendant. 
According to defendant, the question violated his right to due process
and to a fair trial.  Defendant adds that
his motion for a mistrial based on this misconduct should have been granted.

>            B.  Proceedings Below

            During the prosecutor’s examination
of Reid, the following exchange occurred: 


“Q.  So you give notice to the detective before
using a sample in its entirety?

“A.  That is correct.  There are instances where we would not be able
to get any or a complete DNA profile from sampling only a portion of a stain
and in that instance we must consume everything, but we would give notice
first.

“Q.  Okay.  And
that’s so that if the lab—defense lab wants to do some testing, they can be
present during your testing or they can have access to your results and all of
your reports and notes to make sure that you’ve done your job right; correct?

“A.  That is one reason.  Another reason would be for future testing.  If in 20 years technology’s been proved [sic]
such that if I don’t get a profile and there’s sample remaining, they can do
future testing on the sample.  Kind of a
two-edged sword.

“Q.  Do you know if evidence was in fact stored
and—properly stored and eventually received by the defense—

“[Defense
counsel]:  Objection, your Honor.

“Q. —for
testing?”

            The court called for a sidebar, and
defense counsel stated she was making a motion for mistrial.  Defense counsel stated, “She’s going to put
it before the jury that there was testing done by the defense and that
obviously we don’t present the testing; therefore, [the jury] can make the assumption
that it was bad for us.”  The prosecutor
protested, “We ask DNA experts that all the time.”  She maintained that the expert could not
testify whether the defense tested the DNA or not, but only about her protocols
of ensuring that the evidence is maintained and stored properly and, if she had
percipient knowledge, whether it was checked out to the defense.  Defense counsel countered by arguing that the
proffered evidence was irrelevant and highly prejudicial, since there would be
no evidence presented about tests conducted by the defense.  The trial court concluded that the testimony
would be excluded on the grounds that the witness did not have personal
knowledge that anything was picked up or tested.  After hearing readback, the trial court stated
there was nothing to strike.  The
objection was sustained and the motion for mistrial was denied.

>            C.  Relevant Authority

>            “The applicable federal and state standards regarding prosecutorial
misconduct are well established.  ‘“A
prosecutor’s . . . intemperate behavior violates the federal Constitution when
it comprises a pattern of conduct ‘so egregious that it infects the trial with
such unfairness as to make the conviction a denial of due process.’”’  [Citations.] 
Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it
involves ‘“‘the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.’”’  [Citation.] 
As a general rule a defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion—and on the same ground—the
defendant made an assignment of misconduct and requested that the jury be
admonished to disregard the impropriety. 
[Citation.]  Additionally, when
the claim focuses upon comments made by the prosecutor before the jury, the
question is whether there is a reasonable likelihood that the jury construed or
applied any of the complained-of remarks in an objectionable fashion.  [Citation.]” 
(People v. Samayoa (1997) 15
Cal.4th 795, 841.)  “In conducting
this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging
rather than the least damaging meaning from the prosecutor’s statements.  [Citation.]” 
(People v. Frye (1998) 18 Cal.4th 894, 970.)

            Even if a defendant
shows that prosecutorial misconduct occurred, reversal is not required unless
the defendant can demonstrate that a result more favorable to him would have
occurred absent the misconduct or with a curative admonition.  (People
v. Arias (1996) 13 Cal.4th 92, 161.)

            “‘It is, of course,
misconduct for a prosecutor to “intentionally elicit inadmissible
testimony.”  [Citations.]’  [Citation.] 
Such misconduct is exacerbated if the prosecutor continues to attempt to
elicit such evidence after defense counsel has objected. [Citation.]”  (People v. Smithey (1999) 20 Cal.4th
936, 960; People v. Bell (1989) 49
Cal.3d 502, 532.)

>            D.  No Misconduct or Prejudice>

            We agree with respondent that
defendant’s claim of prosecutorial misconduct is forfeited.  Defense counsel’s objection to the question
did not preserve a claim of prosecutorial misconduct, and counsel did not
request the jury be admonished to disregard the alleged impropriety.  (People v. Thomas (2012) 54 Cal.4th
908, 938-939.)  Moreover, defendant fails
to present any argument that an admonition from the trial court would not have
cured the harm allegedly created by the prosecutor’s question.  (People
v. Earp (1999) 20 Cal.4th 826, 858-859; see also People v. Boyette (2002)
29 Cal.4th 381, 447 [holding that claim of misconduct was not preserved where
defense counsel failed to request the jury be admonished, where there was no
indication such a request would be futile or that counsel’s failure to so
request was so prejudicial as to constitute ineffective assistance].)  For these reasons, defendant’s claim of
prosecutorial misconduct is forfeited.

            In any event, defendant’s claim is
without merit.  According to defendant,
the misconduct consisted of the prosecutor’s asking Reid a question that
implied that the defense was hiding something. 
We disagree.  The prosecutor
committed no misconduct in asking whether the defense had an opportunity to
test the DNA evidence.  (See >People v. Cook (2006) 39 Cal.4th 566,
607 [“[p]ointing out that contested physical evidence could be retested did not
shift the burden of proof”].)  The
prosecutor did not ask whether the evidence was retested, or even if the
defense took possession of any DNA evidence. 
The prosecutor merely asked if Reid knew
if the evidence was eventually received by the defense, at which point she was
interrupted by the defense objection. 
Reid was given no opportunity to answer. 
In order for a prosecutorial question to become misconduct because of
its adverse implications to the defendant, the question must imply facts a
prosecutor cannot prove.  (>People v. Warren (1988) 45 Cal.3d 471,
480-481; People v. Earp, >supra, 20 Cal.4th at pp. 859-860 [“a
prosecutor commits misconduct by asking ‘a witness a question that implies a
fact harmful to a defendant unless the prosecutor has reasonable grounds to
anticipate an answer confirming the implied fact or is prepared to prove the
fact by other means’”].)  Such is not the
case here.  Reid could not testify to
anything more than whether or not she knew if the evidence was picked up by a
defense representative.  Even if the
question had been answered, the prosecutor committed no act so egregious that
it infected the trial with unfairness, nor can posing such a question be
considered a deceptive or reprehensible tactic.

            Moreover, the court instructed the
jury with CALCRIM No. 222, in pertinent part, as follows:  “Nothing that the attorneys say is evidence.
. . .  Their questions are not evidence.
. . .  The attorneys’ questions are
significant only if they helped you to understand the witnesses’ answers.  Do not assume that something is true just
because one of the attorneys asked a question that suggested it was true.  During the trial, the attorneys may have
objected to questions or moved to strike answers given by the witnesses. . .
.  If I sustained an objection, you must
ignore the question.  If the witness was
not permitted to answer, do not guess what the answer might have been or why I
ruled as I did.”  Accordingly, we cannot
assume, and we believe it unlikely, that the jury interpreted the prosecutor’s interrupted
question as a statement of fact or evidence of that fact.  We are satisfied that the trial court’s
instructions were sufficient to offset any impact the question had on the jury,
and defendant suffered no prejudice from the prosecutor’s question.  (People
v. Bell, supra, 49 Cal.3d at p.
542.)  We also conclude defendant did not
suffer a violation of his rights to due process and a fair trial, and the
motion for mistrial was properly denied.

III.  “Sleeping” Juror

            >A.  Defendant’s Argument

>            Defendant argues
that the trial court abused its discretion by failing to replace the jurors
noted by defendant as having slept through his DNA expert’s testimony.  Specifically, defendant contends the trial
court had no choice but to discharge at least the one sleeping juror that the
court personally observed and replace her with an alternate.  Defendant maintains the trial court’s failure
in this regard deprived him of his right to a fair trial and due process.

            B.  Proceedings Below

            During a discussion of jury
instructions, the following exchange occurred: 


“The
Defendant:  When Mr. Anjaria [his DNA
expert] was doing his testimony being cross-examined today, I looked and I seen
Juror 14, 13, and 3—14, 12, and 3, they were sleeping.

“The Court:  The only thing that came to my attention, my
observation, is that [Juror] No. 14 closed her eyes for a while but I
watched her.  She reopened them, she
looked asleep, but I think she was awake.

“The Defendant:  Well, when I did it, I watched her for a
minute—I watched all of them and she was doing like this (indicating) and she
did that for a few minutes.  When I first

seen her, I
thought she was just concentrating trying to hear what was going on, maybe more
concentration, then she did like this here (indicating).  I was like wow and she did it again, so I
brought it to my lawyer’s attention and she said, well, they just tired like
that.

“The Court:  The only one I observed was [Juror No.] 14
and it was brought to my attention by the bailiffs.  I continued to observe her.  She may have nodded off for a moment, but she
definitely was awake.  As to any other
jurors, I saw nothing, I was informed of nothing.  The court should have been made aware of it,
should have been brought to my attention.

“The
Defendant:  I was trying.  I kept calling Deputy Starkey to let him know
to help me observe the people sleeping.

“The Court:  All right. 
And I was informed of [Juror No.] 14 only.

“The
Defendant:  Ma’am, well maybe, but I’m
telling you I wouldn’t bring it up.  I
let the deputies observe it with me.  I
would have no reason to lie.  I thought
maybe she just got her eyes closed.  They
were basically sleeping, three jurors sleeping, actually nodding.

“The Court:  Mr. Mosley, I didn’t see it.  If they’ve missed anything, they are entitled
to readback.  Again, if something’s
occurring at that moment, you should bring it to my

attention then—

“The
Defendant:  Again, I tried.

“The Court:  —not after the fact when I can’t wake them
up.

“The
Defendant:  Ma’am, if I was to just blurt
out like that in the courtroom, I’m pretty sure you would sanction me or give
me a restraining move.

“The Court:  Pass a note to your attorney or ask for a
recess.

“The
Defendant:  Right, I did—okay, well, I
didn’t know that, nobody gave me instruction. 
I heard none of my instruction. 
But I did contact the deputy every—each time and I asked him to help me
and he went to the clerk and passed her a note and she passed it to you.  I got it wrote down how long I observed them
and everything, so I contacted him.

“The
Bailiff:  My observations were the same
as yours, your Honor.

“The Court:  As to [Juror No.] 14 nodding a bit?

“The
Bailiff:  No other nodding from other
jurors.

“The Court:  I didn’t see it.

“The
Defendant:  Of course, he’s going to side
with the judge.  I mean, I don’t blame
him, but you think I just laughed at you and was pointing out those people for
nothing? I’m not—

“The
Bailiff:  You pointed them out to me and
I watched them.

“The Defendant:  Okay, and they were sleeping.

“The
Bailiff:  No.

“The
Defendant:  No one else, I’m talking
about—just talking about the ones I actually seen myself just sleeping and I
wouldn’t just make that accusation.  I
was looking at you. Even if I was crazy, I had more sense than just call you
and make a blatant lie like that.

“The Court:  If you wish, we can make [Juror No.] 14 the
alternate and put [Juror No.] 12 in.

“[Defense
counsel]:  No, your Honor, I’d prefer it
to stay the same way.  As I
observed—obviously, I couldn’t observe them constantly, but they seemed—all the
jurors seemed to pay attention to the important testimony.

“[The
prosecutor]:  That’s my understanding of
what was happening.”

            C.  Relevant Authority

            A trial
judge “must conduct a sufficient inquiry to determine facts alleged as juror
misconduct ‘whenever the court is put on notice that good cause to discharge a
juror may exist.’”  (People v. Davis (1995) 10 Cal.4th 463, 547; see also >People v. Bradford (1997) 15 Cal.4th
1229, 1348 (Bradford); >People v. Williams (1997) 16 Cal.4th
153, 231.)  In order to justify
investigation, there must be more than mere speculation of juror misconduct.  Before a juror may be dismissed, the juror’s
inability to perform must appear as a “‘“demonstrable reality.”’”  (Williams,
at p. 231.)  Both the decision to
investigate and the decision as to whether there was misconduct justifying
discharge rest in the trial court’s sound discretion.  (Bradford,> at p. 1348.)  In determining whether juror misconduct
occurred we accept the trial court’s credibility findings if supported by
substantial evidence.  (>People v. >Mendoza (2000) 24
Cal.4th 130, 195.) 

            D.  No Abuse of Discretion

            Bradford
specifically addressed the issue of sleeping jurors and found no abuse of
discretion when the trial court failed to conduct an inquiry into the fitness
of a juror whom the trial court itself had observed sleeping at one point
during the trial.  The trial court was
also aware that the same juror had slept all day on the previous day.  (Bradford,
supra, 15 Cal.4th at pp.
1347-1348.)  >Bradford held that a trial court’s
failure to adequately inquire into a juror’s alleged inattentiveness is rarely
cause for overturning a verdict.  “We
have observed that ‘[a]lthough implicitly recognizing that juror
inattentiveness may constitute misconduct, courts have exhibited an
understandable reluctance to overturn jury verdicts on the ground of
inattentiveness during trial.  In fact,
not a single case has been brought to our attention which granted a new trial
on that ground.  Many of the reported
cases involve contradicted allegations that one or more jurors slept through
part of a trial.  Perhaps recognizing the
soporific effect of many trials when viewed from a layman’s perspective, these
cases uniformly decline to order a new trial in the absence of convincing proof
that