P. v. Sanchez










Filed 11/9/10 P. v. Sanchez CA4/3







NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. SECUNDINO SANCHEZ, Defendant and Appellant.

G042210 (Super. Ct. No. 08CF0489) O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed in part and reversed in part.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Secundino Sanchez of driving a vehicle under the influence of alcohol (count 1) and driving with blood-alcohol concentration (BAC) greater than 0.08 percent (count 4), both while having suffered a qualifying prior felony conviction within the preceding 10 years.[1] (Veh. Code, § 23152, subds. (a) & (b); all further statutory citations are to this code unless noted.) Sanchez contends the trial court interfered with his right to a unanimous jury by discharging a juror, ostensibly for refusing to deliberate. Sanchez also argues the court violated his confrontation rights by allowing a crime lab quality control analyst to testify concerning a BAC report prepared by other analysts. Lastly, Sanchez argues Senate Bill 18’s increased accrual rate for conduct credits under Penal Code section 4019 should apply retroactively to the time he served in Orange County jail, a year before the statute’s effective date.
We conclude the evidence relied upon by the trial court supports the court’s conclusion the dismissed juror refused to deliberate; Sanchez’s challenge on that score therefore fails. We also conclude Sanchez forfeited review of his confrontation claim because he raises it for the first time on appeal. The record suggests tactical reasons counseled against Sanchez confronting the lab analysts who prepared his BAC report; therefore there is no basis to consider an issue he declined to raise below. But we agree with Sanchez that he is entitled to increased custody credits. We therefore affirm the judgment in part and reverse in part.
I
FACTUAL AND PROCEDURAL BACKGROUND
In February 2008, Santa Ana Police Officer Antonio Romero observed a van accelerate rapidly from a stop at a traffic light, screeching its tires as the driver turned left at the intersection. The vehicle swerved from the number two lane into the number three lane, straddled both lanes for about 50 feet, returned to the number two lane, and then straddled the number two and one lanes for about 80 feet. Seeing the van move between the lanes in a quick and choppy fashion, Romero stopped the vehicle.
Three adult males occupied the van, with Sanchez in the driver’s seat. When Romero asked Sanchez for his license and proof of insurance, Romero observed that Sanchez’s eyes were red and watery and that his speech was slurred, and Romero smelled a strong odor of alcohol on Sanchez’s breath and person. Sanchez complied with Romero’s request to step out of the van and walk to the rear of the vehicle, but he swerved as he walked and his steps were unsteady.
Sanchez admitted he had been drinking with friends at a bar and was on his way home; he had been driving for about 20 minutes before being pulled over. Sanchez denied he was sick, injured, diabetic, or epileptic and responded “no” to Romero’s inquiries whether he had taken insulin, bumped his head, had recent surgery, taken any medications that day, or had mechanical difficulties with his car. Sanchez initially agreed to perform field sobriety tests, but when Romero demonstrated one of them, Sanchez had trouble understanding why he had to have both of his feet together, and ultimately refused to cooperate. Romero arrested Sanchez and transported him to jail, where a phlebotomist drew Sanchez’s blood. Two separate laboratory tests revealed a BAC of .27 percent at the time of the blood draw, within two hours of when Romero first observed Sanchez’s erratic driving.
II
DISCUSSION
A. The Trial Court Did Not Err in Discharging Juror No. 8
The Sixth and Fourteenth Amendments to the United States Constitution guarantee an accused the right to a trial by an impartial jury. The California Constitution requires that that jury’s verdict be unanimous. (Cal. Const., art. I, § 16.) Sanchez contends the trial court abused its discretion and violated his right to an impartial and unanimous jury verdict when it discharged Juror No. 8 and replaced him with an alternate. We disagree. The trial court found the juror would not perform his duty to deliberate, but instead had settled on a fixed position at the outset of juror discussions, and the record supports this conclusion as a demonstrable reality. Under the demonstrable reality standard, the reviewing court must be confident that the trial court’s decision to remove a juror “is manifestly supported by evidence on which the court actually relied.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1053 (Barnwell).)
The trial court may remove a juror who refuses to deliberate “on the theory that such a juror is ‘unable to perform his duty’ within the meaning of Penal Code section 1089.” (People v. Cleveland (2001) 25 Cal.4th 466, 475 (Cleveland); see Pen. Code, § 1089 [death, illness, or inability of juror to perform duty constitute “good cause shown” for removal of juror].) We review a trial court’s removal of a juror and replacement with an alternate for abuse of discretion. (Cleveland, at p. 474.) That discretion is “at most a limited discretion to determine that the facts show an inability to perform the functions of a juror, and that inability must appear in the record as a demonstrable reality.” (People v. Compton (1971) 6 Cal.3d 55, 60 [reversal where trial court expressly found juror’s remarks did not show he “‘would be unable to serve,’” but nevertheless dismissed him “‘out of an abundance of caution’”].)
Here, the jury retired to deliberate following two days of evidence and argument. One hour and forty-nine minutes after deliberations began, the jury foreman sent the court a note stating, “‘We have a concern with the juror’s ability to physically participate in the deliberations.’” The trial court called the foreman into the courtroom, where the foreman explained that Juror No. 8 had stated at the outset of deliberations that he could not speak about the case without first drinking some water. After the bailiff had brought Juror No. 8 water as requested, Juror No. 8 still declined to speak about the case, stating instead that he wanted to think about the issues overnight and come back the next day. After privately discussing the issue with counsel, the court sent a response note to the jury stating, “‘The jurors can continue to deliberate, if you wish. You can come back tomorrow, or the court and the attorneys can stay as long as we have to tonight.’”
Eight minutes after the court sent its response note, the court received another note from the jury requesting the “court reporter’s entire transcripts.” After discussing the issue with counsel, the court responded by stating that “‘[t]here is no transcript of the reporter’s record.’” Shortly thereafter, the foreman sent a follow-up note requesting the portion of the transcript describing the “preparation of [the] vial (tube) for the blood sample” and particularly, “[w]hat material was added in the tube before [the] blood was drawn,” and “[w]hat amount of substance was added.” After the court reporter read back the relevant portion of the record to the jurors, the foreman sent a final note to the court. This note read, “‘We have one juror who is not willing to follow judge’s deliberating instructions or participate in meaningful dialogue.’” Upon receiving this note and consulting with counsel, the court called all of the jurors into the courtroom.
The court’s questioning of the jurors revealed that within five to fifteen minutes after retiring to the jury room, and before beginning to discuss the evidence, Juror No. 8 informed the other jurors that the vote was going to be “‘eleven to one’” and that he had weeks to spend in deliberations if necessary. Juror No. 3 explained that Juror No. 8 told everyone that he had made up his mind “probably before the evidence was even brought in.”According to Juror No. 12, when the other jurors “were trying to get down to the evidence,” Juror No. 8 stated, “‘Well, I think, you know, it’s me against you guys, but you need to know I’ve got three weeks.’”
The court’s exploration also revealed that Juror No. 8 regularly interrupted other jurors’ attempts to express their views and, during these interruptions, Juror No. 8 would say things like, “‘Nobody’s listening’” or “‘Oh, you’re miss know-it all. Okay, I guess I’m wrong. You know everything. You know everything. She knows everything.’” Moreover, when asked to express his own views, Juror No. 8 would refuse to do so by stating he was unable to speak anymore since his mouth was too dry and he needed water. This practice continued even after the bailiff brought him a glass of water. Juror No. 7 explained that Juror No. 8 “at times refused to participate in discussion[s] by claiming that he can no longer speak [and] when [the other jurors] pressed him for what evidence he had for a particular viewpoint, he was unable to speak anymore.”
According to Juror No. 8, during deliberations, he “tried to talk with [reference to] the instructions that [the court] gave [him] . . . .” He explained, “I tried to talk about — everybody brought in their personal beliefs into this. I mean one man talked about how he had enough alcohol in him where he could do what — you know, walk around and not be like falling-down drunk, you know. And I explained I’m not around alcoholics. I don’t see that. [¶] He said, ‘Well, I can drink over the limit, and I bet you I can still do everything.’ Because I said the police officer said he was able to sit down and come back up without any help. It’s not like he sat down and fell over. [¶] Then I got personal attacks by different people right away. One man said, ‘Oh, you’re just like my wife.’ I had said nothing to this person . . . .” The juror who made the “just like my wife” comment explained it had been a reaction to Juror No. 8 cutting him off in mid-sentence.
The trial court excused the jurors from the courtroom to discuss the matter with counsel after reviewing Cleveland, supra, 25 Cal.4th 466. The court concluded it did not find Juror No. 8 credible in his claim he engaged in deliberations with the other jurors. The court noted that when one juror estimated just 15 minutes elapsed in the jury room before Juror No. 8 made his statement “that it’s ‘eleven to one and I’ve got three weeks to . . . sit here,’” four other jurors “raised their hands with ‘five’ up in the air” to indicate that just five minutes had passed. The trial court found the evidence gleaned from the jury demonstrated “this juror had made his mind up that he wasn’t going to deliberate . . . .” The court declined to recall Juror No. 8 for further questioning, which the court concluded would be futile since the juror likely again “would tell [the court] ‘I’m deliberating’” — an assertion the trial court found belied by the evidence. Based on the evidence presented, the trial court found Juror No. 8 “did not intend to deliberate and [that] he had his mind made up within five minutes [of deliberations].” Accordingly, the court discharged Juror No. 8.
The following morning, the trial court heard defense counsel’s request to revisit the issue. Counsel emphasized that even if a juror is “hostile” or “frustrating” in his or her approach to deliberations, that does not constitute good cause for dismissal. Counsel also relied on People v. Bowers (2001) 87 Cal.App.4th 722 for the proposition that to “deliberate means to ponder or think about with measured careful consideration, but it doesn’t necessarily mean you have to have a formal discussion.” The court concluded however that, based on the evidence presented, Juror No. 8 did not merely express hostility, but refused to deliberate. Consequently, the trial court replaced Juror No. 8 with an alternate.
In Cleveland, the Supreme Court defined a “refusal to deliberate” as consisting of “a juror’s unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views.” (Cleveland, supra, 25 Cal.4th at p. 485.) A nonexhaustive list of examples of conduct constituting a refusal to deliberate includes: “expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury.” (Ibid.) The Supreme Court also noted: “The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge. A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views. [Citations.]” (Ibid., italics added.)
We find no error in Juror No. 8’s dismissal under the “demonstrable reality” standard of review. Unlike review for substantial evidence, which requires only that the record contain “credible evidence of solid value upon which a reasonable trier of fact could have relied in reading the conclusion in question,” the demonstrable reality test “requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that [the reason for the juror’s dismissal] was established.” (Barnwell, supra, 41 Cal.4th at pp. 1052–1053, original italics.) To determine whether the trial court’s conclusion is “manifestly supported by evidence on which the court actually relied,” we consider not just the evidence itself, but also the record of reasons the court provided. (Id. at p. 1053.) In doing so, we will not reweigh the evidence, but instead must “afford deference to the trial court’s factual determinations, based, as they are, on firsthand observations unavailable to us on appeal.” (Ibid.)
Here, the evidence on which the court actually relied shows that as a demonstrable reality, Juror No. 8 refused to deliberate. First, the evidence demonstrates that Juror No. 8’s “unwillingness to engage in the deliberative process” since he constantly interrupted other jurors and refused to express his own views when the other jurors asked him to articulate them. (Cleveland, supra, 25 Cal.4th at p. 485.) Indeed, the evidence reveals that instead of expressing his views, Juror No. 8 stated multiple times that he could not physically speak, though this speech impediment seemed to disappear the moment another juror had something to say. There is no basis for us to second-guess the trial court’s finding that Juror No. 8 was not credible in claiming he deliberated with his peers.
Secondly, the evidence on which the court actually relied demonstrates that Juror No. 8’s refusal to deliberate began at the outset of deliberations when he declared a firm conclusion and refused to consider other points of view. He announced, five to fifteen minutes into the deliberations and before discussing the evidence, that the vote was going to be “eleven to one” and that the other jurors needed to know that he, Juror No. 8, had several weeks to “sit here,” if necessary. Thus, the evidence supports the trial court’s conclusion Juror No. 8 did not deliberate for a reasonable period of time before reaching his conclusion. Indeed, the evidence showed to a demonstrable reality that Juror No. 8 failed to deliberate at all with his fellow jurors, instead holding to a fixed, predetermined position. Consequently, the trial court did not abuse its discretion by dismissing Juror No. 8 and replacing him with an alternate.
B. Sanchez Forfeited His Appellate Claim of a Confrontation Clause Violation
The Sixth Amendment provides that “‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.’” (Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527, 2531] (Melendez-Diaz).) On appeal, Sanchez now contends the trial court violated his confrontation right by admitting a BAC report prepared by two laboratory analysts who did not testify, and by allowing a quality control expert at the lab to rely on the report to divulge Sanchez’s BAC test results and explain the lab’s BAC testing procedures and the scientific basis for those tests. Sanchez, however, raised no confrontation objection below.
To the contrary, he objected that the expert, Kirk Pareti of the Orange County Sheriff’s Department’s crime lab, had no personal knowledge of Sanchez’s BAC tests, and therefore his testimony lacked foundation. The trial court overruled this objection to Pareti’s testimony and to admission of the BAC report as the basis for Pareti’s testimony, including his opinion the testing process met scientific standards. (See People v. Gardeley (1996) 14 Cal.4th 605, 618-619 [expert may rely on hearsay and may disclose hearsay basis for his or her testimony].) The trial court concluded the BAC report fell within the business records exception to the hearsay rule (Evid. Code, § 1271), and Sanchez does not challenge that ruling on appeal.
Because Sanchez failed to assert he had any right or interest in confronting the BAC analysts below, he has forfeited the contention on appeal. An appellate court will generally not review a claim the trial court should have admitted or excluded evidence “for a reason different from his trial objection.” (People v. Partida (2005) 37 Cal.4th 428, 435 (Partida); see United States v. Olano (1993) 507 U.S. 725, 731 [“‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it’”].) The high court specifically held in Melendez-Diaz that “[t]he defendant always has the burden of raising his Confrontation Clause objection . . . .” (Melendez-Diaz, supra, 557 U.S. at p. ___ [129 S.Ct. at p. 2541].) Accordingly, “[t]he right to confrontation may, of course, be waived, including by failure to object to the offending evidence . . . .” (Id. at p. ___ [129 S.Ct. at p. 2534, fn. 3]; accord, e.g., People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19; People v. Burgener (2003) 29 Cal.4th 833, 869.)
Fairness dictates a specific objection must be made (Evid. Code, § 353) so that the party offering the evidence may cure an alleged defect or otherwise “respond appropriately . . . .” (Partida, supra, 37 Cal.4th at p. 435.) This is particularly true here, where, because nothing suggests the analysts were unavailable, the prosecution could have responded to a confrontation objection by producing them. Indeed, in curing an alleged confrontation violation, presenting the analysts also may have strengthened the prosecution’s case.
The record thus suggests a tactical reason for the objection counsel made (Pareti’s lack of personal knowledge) and the one counsel omitted (confrontation of the analysts). Specifically, the defense theory was that Sanchez’s “driving and relatively mild physical symptoms of impairment, as described by the People’s witness [the arresting officer], were entirely inconsistent” with his purported BAC level of .27 percent, which Pareti acknowledged would render “probably the majority of people . . . either close to comatose or comatose . . . .” The defense pinned its theory, according to counsel, on the “possibility of inadequate preservative” in Sanchez’s blood vial, thereby “allowing for bacteria that would increase the blood alcohol reading of the sample.” Pareti acknowledged bacteria left unneutralized by adequate preservative could increase the blood alcohol reading since “some bacteria during the course of their metabolizing sugar, most of the time they give off [or] release alcohol.” Pareti also acknowledged the BAC test apparatus did not test for the levels of preservative in a given sample.
Naturally, Sanchez was interested in establishing reasonable doubt concerning his BAC result rather than the historical fact of whether the analysts or other lab personnel prepared Sanchez’s blood vial with adequate preservative. Confronting the analysts on this point posed the risk their testimony would persuade the jury they used the right amount of preservative, and therefore the high BAC reading was accurate. (See Melendez-Diaz, supra, 557 U.S. at p. ___ [129 S.Ct. at p. 2542] [noting the unlikelihood that “defense counsel will insist on live testimony whose effect will be merely to highlight rather than cast doubt upon the forensic analysis”].) Pointing instead to — by objection and by argument — Pareti’s lack of personal knowledge concerning Sanchez’s test did not raise a similar risk. Indeed, leveraging the quality control expert’s testimony enhanced Sanchez’s reasonable doubt argument concerning his BAC reading, whereas actually confronting the analysts risked undermining it.
Because the record suggests a tactical reason for counsel’s failure to object on confrontation grounds, we conclude Sanchez has forfeited the claim on appeal. It would be unfair to address a claim he delayed raising until the prosecution could not meet his belated interest in confrontation. Moreover, implicit in a confrontation claim is an interest in actually confronting the witness, but where the record shows a tactical purpose to avoiding confrontation, there is no point to abstract appellate review of a right the defendant did not want to assert at trial.
C. Presentence Conduct Credit
The trial court sentenced defendant on June 12, 2009, and awarded him credits for 488 days of actual custody (Pen. Code, § 2900.5.) and 244 days of work-conduct credit, calculated at the rate of two days for every four days in custody, per Penal Code section 4019. The Legislature amended Penal Code section 4019 effective January 25, 2010, to allow offenders convicted of nonserious and nonviolent crimes to earn presentence conduct credit at the rate of two days for every two days in custody. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Defendant contends he is entitled to retroactive application of the new law and therefore should receive additional conduct credits. We agree.
Generally, legislative amendments are presumed to operate prospectively, unless there is an express declaration to the contrary. Because the amendment to Penal Code section 4019 does not state whether retroactive application is permitted, the Attorney General argues we must follow the general rule of prospective application. But in In re Estrada (1965) 63 Cal.2d 740 (Estrada), the Supreme Court concluded that when the Legislature amends a statute to mitigate punishment, “the rule is that the amendment will operate retroactively so that the lighter punishment is imposed.” (Id. at p. 748.) The court explained, “It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply.” (Id. at p. 745.)
Courts have traditionally deemed legislative enactments that increase the amount of credits a defendant may accrue as statutes that mitigate punishment for purposes of the Estrada rule. (See, e.g., People v. Doganiere (1978) 86 Cal.App.3d 237 [statute involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389 [statute involving custody credits].) Following this tradition, the majority of courts that have considered the issue have determined the recent amendment to Penal Code section 4019 falls within the Estrada rule because section 4019 effectively reduces the amount of time eligible defendants will have to spend in prison.
Although the Supreme Court has granted review of the issue and will have the final say on the matter (see People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808), we agree with emerging majority view and conclude the amendment to Penal Code section 4019 should be applied retroactively to cases pending on appeal. Pursuant to the amendment, we direct the trial court on remand to recalculate the number of days of presentence conduct credit for defendant and to modify the judgment accordingly.
III
DISPOSITION
The judgment is reversed to allow the trial court to recalculate the number of days of presentence conduct credit under amended Penal Code section 4019, to prepare an amended abstract of judgment accordingly, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.



ARONSON, J.


WE CONCUR:



RYLAARSDAM, ACTING P. J.



O’LEARY, J.

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