P. v. Wagner

Filed 8/20/08 P. v. Wagner CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Michael R. Libutti, Judge. Affirmed.

Patrick Morgan Ford, 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, and Barry Carlton and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant, Jesse Adrian Wagner, impersonated a peace officer while he worked as a bail bondsman. One night, defendant drove a Crown Victoria Interceptor automobile, which was equipped with police gear, and pulled over Pedro Pacheco (Pacheco/victim). Defendant searched Pacheco, removed his wallet, and took his cash and identification cards. When defendant was arrested three and a half months later, police discovered a baton on his person.

Defendant was charged with two counts of impersonating an officer (Pen. Code,  146a, subd. (b)),^[1]two counts of kidnapping to commit a robbery ( 209, subd. (b)(1)), two counts of robbery ( 211), two counts of being an ex-convict in a custodial facility ( 4571), and possessing a weapon ( 12020, subd. (a)(1)). A prior prison term enhancement was also alleged ( 667.5, subd. (b)).

After a jury trial, defendant was found guilty of one count of impersonating an officer, one count of robbery, two counts of being an ex-convict in a custodial facility, and one count of possessing a deadly weapon.^[2] The jury also found defendant guilty of the lesser included offense of falsely imprisoning Pacheco. In a bifurcated trial, the court found true the prior prison term allegation. Defendant was sentenced to nine years four months in prison.

On appeal, defendant contends that (1) his trial counsel rendered ineffective assistance, (2) the prosecution committed a Brady^[3]violation by failing to disclose evidence, (3) the photo identification procedure was so suggestive as to violate due process, (4) the courts failure to remove a nondeliberating juror violated his right to an impartial jury, (5) the trial court improperly imposed the upper term on the robbery count, and (6) cumulative error requires reversal. We reject all of defendants claims and affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

To provide an overview, evidence was presented at trial establishing that defendant was an ex-felon^[4]who worked as a bounty hunter for a bail bond agency. By law, ex-felons are prohibited from acting as bail agents. ( 1299.04, subd. (a)(5).)

As a bail bondsman, defendant would arrest bail jumpers while wearing clothes that resembled a police uniform, a Sam Brown belt containing various tools of the police trade, badges, and a bulletproof vest. He drove refurbished vehicles designed to resemble police cruisers that he used to transport recovered fugitives. Defendant used these law enforcement accoutrements to establish a command presence.

After defendant arrested a fugitive on a warrant, he would book the person into a custodial facility. Because defendant was an ex-felon, he was prohibited from entering into any custodial facility. ( 4571.)

Defendant would detain Hispanics and threaten them with deportation. On one occasion, defendant detained and searched Pacheco. He took Pachecos wallet and removed his money, identification, social security cards, and work permit. He left the empty wallet on the seat of Pachecos car. When officers arrested defendant, they discovered a baton on his person.

Further relevant facts and procedural history will be incorporated into our discussion of defendants contentions.

DISCUSSION

A. Defendants Trial Counsel Did Not Render Ineffective Assistance.

Defendant was charged with impersonating an officer, kidnapping for robbery, and robbing Pacheco. The defense theory at trial was SODDI.^[5] In support of this theory, defense counsel, OConnor, argued that Pacheco could not identify the right suspect or the right car.

After his conviction, defendant retained a new attorney, Melone, who filed a motion for new trial. In her motion, Melone argued that OConnor rendered ineffective assistance because he refused to subpoena (until July 2003) Department of Motor Vehicles (DMV) records, which would have shown that defendant did not own the 1998 Crown Victoria used in the April 18, 2003, robbery. Melone claimed that if OConnor had subpoenaed the DMV documents, the jury would have come back with a different verdict or raised a reasonable doubt that defendant was the registered owner of the 1998 Crown Victoria at the time of the robbery. Melone subpoenaed the DMV records, which she contended showed that William Bui was the owner of the vehicle at the time of the April 18, 2003, robbery and that defendant purchased the vehicle from Dean Zirroli on July 15, 2003.

On appeal, defendant reiterates his contention that OConnor failed to investigate or present evidence that he did not purchase the 1998 Crown Victoria until three months after the robbery.

To establish entitlement to relief for ineffective assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsels failings. (People v. Lewis (1990) 50 Cal.3d 262, 288; Strickland v. Washington (1984) 466 U.S. 668.)

As to the first prong, defendant has failed to establish that OConnor did not act as a reasonably competent and diligent advocate. Defendant argues that OConnor refused to present DMV records as evidence that defendant did not own the vehicle until three months after the crime. However, there were already documents in evidence proving that defendant did not become the registered owner of the 1998 Crown Victoria until July 15, 2003. The vehicle report (California Highway Patrol [CHP] Form 180), submitted by the People, contained six pages. The fourth page of that document is a California Law Enforcement Telecommunications System (CLETS) report chronicling the vehicles history. It shows defendant became the registered owner on July 15, 2003. Consequently, trial counsel did not render ineffective assistance by failing to subpoena exculpatory evidence from the DMV as that evidence had already been admitted at trial. The DMV documents would have been cumulative. Not only was the CHP Form 180 admitted into evidence, defendant testified that he did not own the vehicle (identified in exhibit No. 10) until three months after the robbery.

With respect to the second prong, defendant cannot prove that he would have received a more favorable outcome even if defense counsel had admitted the cumulative evidence. Evidence that Bui or Zirroli had title to the vehicle is irrelevant^[6]to the issue of whether defendant was in possession of the car when he robbed Pacheco. Ownership and possession of property are two completely separate things. (People v. Hernandez (2004) 33 Cal.4th 1040, 1053.) Whether Bui or Zirroli was the legal owner of the car does not, a fortiori, have a tendency in reason to disprove defendant used the vehicle when he pulled Pacheco over and committed the crimes against him. (People v. Kelly (1992) 1 Cal.4th 495, 523; Evid. Code, 210.)

As the People cogently note, defendant himself admitted that he used the car before he purchased it. During cross-examination, defendant testified as follows:

[Prosecutor:] Have you ever used this person Zirolis [sic] car?

[Defendant:] I purchased Zirolis [sic] car.

[Prosecutor:] Okay. Have you ever used his car? [] . . . [] . . . at any time?

[Defendant:] Prior to me purchasing that car he owned it. I used it, yes. The answer is yes. (Italics added.)

We also agree with the People that it matters not whether defendant was driving the 1998 Crown Victoria or a 2000 Crown Victoria (which defendant also owned) on the date of the robbery. Claudine Lopez Gomes testified that between March 2003 and May 2003 she spent some time going on 10 to 20 ride alongs with defendant. Even she was confused by the two Crown Victoria automobiles because they were similarly equipped with law enforcement trade tools.

Finally, we find persuasive the Peoples argument that counsel may have had tactical reasons for failing to provide loan documents or DMV registration papers to prove defendant did not own the 1998 Crown Victoria at the time of the robbery. Calling Bui or Zirroli to testify may have opened the door to inculpatory evidence, that is, they allowed defendant to use the vehicle on April 18, or a link could be established that Zirroli was also involved in the robberies which would have more strongly implicated defendant. Counsel may also have considered it of de minimis help to prove the car was registered to a coworker when the issue was possession, not title.

We defer to counsels tactical choices. It is all too tempting for a defendant to second-guess counsels assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsels defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsels challenged conduct, and to evaluate the conduct from counsels perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. [Citation.] There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. (People v. Lewis, supra,50 Cal.3d at p. 288.)

We conclude that this record presents no basis for finding that counsel acted ineffectively.

B. The Prosecution Did Not Commit Brady Error.

Detective Finneran testified that she reviewed the DMV records of the vehicles defendant owned. Defendant argues that this testimony confirms that the detective either possessed the official DMV records or recorded the relevant information from the records. Therefore, he argues, the San Bernardino County Sheriffs Department, as an investigating agency assisting with the prosecutions case, had possession of exculpatory evidence showing that defendant did not own the vehicle identified by Pacheco as the car used in the robbery. Defendant asserts that the prosecution committed Brady error when it failed to disclose the DMV records to the defense.

The prosecution counters that the defendant has forfeited this issue on appeal as his motion for new trial below only asserted ineffective assistance of counsel and did not allege Brady error. Defendant replies that issues of constitutional magnitude may be raised for the first time on appeal if the underlying facts are undisputed.

Assuming, without deciding, that the matter has not been forfeited on appeal, we conclude that the prosecution did not commit Brady error.

In Brady, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. [Citation.] The high court has extended the prosecutors duty to encompass the disclosure of material evidence . . . . (People v. Hoyos (2007) 41 Cal.4th 872, 917-918, italics added.)

Brady materiality is a constitutional standard required to ensure that nondisclosure will not result in the denial of defendants [due process] right to a fair trial. [Citation.] (City of Los Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th 1, 8.) Evidence is material if there is a reasonable probability that the result of the proceeding would have been different had the evidence been disclosed.

A defendant has the burden of showing materiality. (People v. Hoyos, supra, 41 Cal.4th at p. 918.) In order to assert a Brady claim, a defendant must show the different result of the proceeding in terms of the verdict. (Ibid.)

Defendant has not demonstrated that the failure to turn over the DMV records reviewed by the detective would have changed the outcome of the trial. As previously discussed, the DMV record was admitted into evidence as part of the CHP Form 180 by the prosecutor. [E]vidence that is presented at trial is not considered suppressed, regardless of whether or not it had previously been disclosed during discovery. (People v. Morrison (2004) 34 Cal.4th 698, 715.)

There is nothing in the record that shows whether defense counsel had or had not reviewed the DMV record attached to the CHP Form 180 before it was tendered by the People. While it is unclear from the record if defense counsel received the DMV record appended to CHP Form 180 as pretrial discovery, the record does reflect that defense counsel never made a discovery violation objection for his failing to receive the document. Rather, the record reflects that defense counsel himself submitted into evidence the first page of the Peoples exhibit No. 135, which was the CHP Form 180. Moreover, defendant himself admitted that he did not register the vehicle until July 15, 2003, three months after the robbery.

In that the DMV record had already been admitted into evidence, defendant has failed to establish how the trials outcome would have changed if the detective had turned over the DMV records. The DMV records in the Peoples exhibit No. 135 demonstrated that defendant did not own the 1998 Crown Victoria at the time of the April 18 robbery; however, the jury still found defendant guilty on all counts involving Pacheco.

Next, the DMV records were equally available to the defendant by way of subpoena. Although the prosecution may not withhold favorable and material evidence from the defense, neither does it have the duty to conduct the defendants investigation for him. (People v. Zambrano (2007) 41 Cal.4th 1082, 1134.) [I]nformation possessed by an agency that has no connection to the investigation or prosecution of the criminal charge against the defendant is not possessed by the prosecution team, and the prosecutor does not have the duty to search for or to disclose such material. [Citation.] [Citations.] (Id. at p. 1133.) Contrary to defendants claim, the prosecution has no obligation to do his work and subpoena documents that were readily accessible to him from the DMV, an agency that had no part in prosecuting defendant.

We conclude that the prosecution did not commit Brady error.

C. Pachecos Pretrial Identification of Defendant Was Reliable Under the Totality of Circumstances.

Detectives Wirz and Finneran were investigating the Pacheco and Zavala robberies and noted the large number of similarities between the two. During a July 31, 2003, police briefing, one of the deputies in attendance said that he was aware of a subject that matched the robbers description.

Detective Finneran asked Deputy Ruiz to interview Pacheco to identify the person who robbed him. She asked Deputy Ruiz to conduct the interview because Pacheco was a Spanish speaker and Detective Finneran was not. She gave Deputy Ruiz a press release with pictures of the defendant. The top picture was a picture of a Crown Victoria automobile, and the middle picture depicted defendant wearing a blue polo shirt with an embroidered shield standing next to a car. She also gave him two photographs, exhibit Nos. 65 and 66, which had been downloaded from defendants laptop. Exhibit No. 65 depicted defendant wearing a blue uniform and a seven-point star with patches on the shoulders.

Deputy Ruiz interviewed Pacheco on August 30, 2003, approximately four months after the robbery. He asked Pacheco to give him a description of the suspect. Pacheco said the robber was a Hispanic male, between five feet five inches and five feet six inches tall, weighing 180 to 190 pounds. He wore a dark blue uniform with a patch on it; he did not have a badge on his uniform.

Deputy Ruiz verbally translated into Spanish an in-field admonishment. Ruiz warned Pacheco, The person that you are about to look at may or may not be the subject that robbed you, and that Pacheco needed to be careful about anyone he might pick out.

Deputy Ruiz then showed Pacheco three pictures at once. The first picture was a picture of a car. The second picture was an individual in a dark blue shirt with an emblem on it. The last picture was of a person in an orange jail suit.

Pacheco identified the second picture of defendant wearing a blue uniform with a patch and identified the white police car with a red light on top of it. Pacheco was positive defendant was the one who robbed him because of the uniform, the individual was five feet five inches or five feet six inches tall, and he recognized the car. Pacheco added that there was no computer inside the vehicle and that a female was sitting inside the car.

Prior to trial, defendant filed a motion in limine to exclude Pachecos identification of defendant, the laptop images, and the videotaped images from evidence. After an Evidence Code section 402 hearing on the motion, defense counsel argued that Deputy Ruiz did not apply a fair identification process in showing the photos to Pacheco. He complained that Ruiz only showed Pacheco one individual in a uniform, and did not use a six-pack or lineup for identification purposes. Counsel argued that the process was highly suggestible and unreliable because it only showed one person in a uniform and the deputy should have used a six-pack with other people dressed in uniforms for comparison purposes. When the prosecutor suggested they could do a lineup with people in uniforms in court that day, defense counsel stated that he made a tactical decision not to request an Evans^[7]lineup. The trial court denied defendants in limine motion, ruling that the defendant did not meet his burden to show that the pictures were so impermissibly suggestive as to give rise to a very substantial likelihood or irreparable misidentification.

At trial, Pacheco testified as a prosecution witness:

[Prosecutor:] Do you recall the person who pulled you over?

[Pacheco:] Well, maybe a little bit. It was dark. [] . . . []

[Prosecutor:] Would you recognize the person today? Do you see him in the courtroom today?

[Pacheco:] Maybe so. [] . . . []

[Prosecutor:] Is he in the courtroom today? Look around. Look everywhere.

[Pacheco:] He looks like the one over there. [] . . . [] The one with the glasses. [] . . . [] . . . More or less like him. [] . . . []

[Prosecutor:] Which person is he at the table? Black or brown hair? Thank you?

[Pacheco:] Black. [Defendant is identified.] [] . . . []

[Prosecutor:] The person at the end of the table with the black hair looks familiar to you?

[Pacheco:] Yes, it is. But a little bit heavier. [] . . . []

[Prosecutor:] Is he smaller now?

[Pacheco:] Yes.

[Prosecutor:] Mr. Pacheco, I am going to show you Exhibit Number 3 [sic 65]^[[8]] in a minute. Do you see Exhibit 3 [sic]? It is a photograph; correct? Do you recognize the photograph?

[Pacheco:] Yes. [] . . . []

[Prosecutor:] Does the person in the photograph look familiar to you?

[Pacheco:] Yes. It looks something like that.

[Prosecutor:] Okay. What is different?

[Pacheco:] I didnt look very well at his face. I thought he was a lighter color. [] . . . []

[Prosecutor:] Earlier you identified the individual at the end of the table as looking familiar to you; is that correct?

[Pacheco:] Yes.

[Prosecutor:] Does the person at the end of the table look like the person who robbed you on April 18th? [] . . . []

[Pacheco:] Yes.

[Prosecutor:] Is the person at the end of the table the person who robbed you?

[Pacheco:] I dont know, but he looks very similar. [] . . . []

[Prosecutor:] Does this person at the end of the table look a little different than [] . . . Your Honor, if I could have the defendant stand up so the witness can take a look at him?

[The Court:] Go ahead, Mr. Wagner. Stand up, please.

[Prosecutor:] Does this person look like the person who robbed you? [] . . . []

[Pacheco:] No. The other one was heavier.

[Prosecutor:] He was heavier?

[Pacheco:] Yes.

During cross-examination, Pacheco testified:

[Defense Counsel:] Other than today when you saw pictures and other than when you were with the sheriffs, did you see any pictures?

[Pacheco:] Yes.

[Defense Counsel:] When did you see those pictures?

[Pacheco:] Maybe 20or a month ago.

[Defense Counsel:] And who showed you the pictures at that time?

[Pacheco:] The detective. I dont know who she is.

[Defense Counsel:] She showed you all those same pictures?

[Pacheco:] Yes.

[Defense Counsel:] Did you tell her at that time that the person looks kind of like the guy?

[Pacheco:] Yes. [] . . . []

[Defense Counsel:] If Detective Finneran tells us that you told her that was the guy, would she be wrong?

[Pacheco:] No.

[Defense Counsel:] You told her that was the guy?

[Pacheco:] Yes. I told her that it looked a lot like him.

[Defense Counsel:] It looked a lot like him. [] Now, when you talked to the sheriffs when you first saw these pictures, did you tell them also that that looked like the guy?

[Pacheco:] Yes.

[Defense Counsel:] So if they came in and said that you told them, That is the guy, they would be wrong; correct?

[Pacheco:] No.

On redirect, the prosecutor asked Pacheco:

[Prosecutor:] Do you remember talking to a deputy in Spanish who showed you some photographs? [] . . . []

[Pacheco:] They showed them at my house. [] . . . []

[Prosecutor:] When the deputy showed you these photographs, do you recall telling him you were positive that was the person who robbed you that night?

[Pacheco:] Yes. Because my cousin also said yes. Yes. I remembered [] . . . []

[Prosecutor:] Do you recall, when the Spanish speaking deputy showed you these photographs at your home, telling him you were positive that was the person who robbed you?

[Pacheco:] Yes.

Defendant contends that Pacheco was unable to positively identify defendant at trial, but made a positive identification of the Crown Victoria shown to him in exhibit No. 10. He asserts that the identification procedure was hopelessly flawed in that showing Pacheco photographs of defendant by himself, dressed in a uniform along with the Crown Victoria shown in exhibit No. 10 was unfairly suggestive. He claims that the People cannot prove the error was harmless beyond a reasonable doubt under the Chapman^[9]standard because Pachecos and Zavalas testimonies were the only evidence connecting him to the robberies, and defendant had an alibi that he was assisting an officer 15 miles away from the robbery at the time.

The People concede that the pretrial identification procedure used was suggestive. However, they contend that the identification itself was reliable under the totality of the circumstances.

In order to determine whether the admission of identification evidence violates a defendants right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witnesss degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification. (People v. Cunningham (2001) 25 Cal.4th 926, 989.) The defendant bears the burden of demonstrating the existence of an unreliable identification procedure. (Ibid.)

As to the first prong, the standard used to determine whether a procedure is unduly suggestive, is whether anything caused defendant to stand out from the others in a way that would suggest the witness should select him. [Citation.] (People v. Yeoman (2003) 31 Cal.4th 93, 124; People v. Cunningham, supra, 25 Cal.4th at p. 990.) We accept the concession of the parties and find that the identification procedure used by Deputy Ruiz was suggestive. We agree with defendant that showing Pacheco photographs of defendant by himself, dressed in a uniform along with the Crown Victoria shown in exhibit No. 10 was suggestive. The suggestibility of the deputys procedure was exacerbated when he showed Pacheco three pictures at once: the picture of a car, the picture of defendant in a dark blue shirt with an emblem on it, and a picture of defendant in an orange jail suit.

As the identification procedure was unnecessarily suggestive, it is necessary to address the second prong to determine the reliability of the identification. (People v. Yeoman, supra, 31 Cal.4th at p. 124.) Applying the reliability factors, our independent review substantiates the Peoples assertion that under the totality of the circumstances Pachecos pretrial identification was properly admitted. (People v. Kennedy (2005) 36 Cal.4th 595, 608-609.)

Pacheco had a prolonged stretch of time to observe the robber; 30 to 40 minutes had elapsed from the time defendant stopped Pachecos car to the time he let him go.

Pacheco had a number of opportunities to interact with defendant. Defendant spoke to Pacheco several times: he asked Pacheco if he had a drivers license, he was looking for cervezas, he spoke a few words in broken Spanish, he asked Pacheco and his passengers to get out of the car, he told Pacheco he was going to take them to immigration and deport them, and he told Pacheco there were not any problems and he was going to let them go. Defendant searched Pacheco and placed him in the back of defendants Crown Victoria.

The circumstances surrounding the robbery caused Pacheco to be mindfully observant of defendant. Defendant walked Pacheco to his (defendants) car and placed him in the back seat. Pacheco watched defendant as he looked inside his and his cousins wallets. He noted defendants apparel: a blue uniform, a belt, and tube-like equipment. He observed defendants physical features at the time of the robbery: he was heavy and had short black hair. Pacheco and his cousin went back to the bar to see if they could find the woman who was with the robber. Pacheco saw the woman and the suspect outside the bar; they recognized Pachecos car.

It is true that Pacheco testified that he did not get a very good look at the robbers face, but Pachecos inability to describe the robbers face does not vitiate his pretrial identification of defendant. Pachecos prior description of the suspect was accurate. Pacheco had an extended period of time to interact with defendant and observe his features and characteristics. He accurately described defendants hairstyle and heavy physique. Pacheco was able to estimate defendants height within three or four inches. He rightly perceived defendants clothing and equipment.^[10] Pacheco positively identified defendant to Deputy Ruiz three and a half months after the robbery. This was not an unduly protracted period of time which would prevent Pacheco from recalling the details of the suspect who robbed him. In fact, the opposite was true: Pacheco was positive that defendant was the person who robbed him. When shown photographs of defendant a second time (approximately one month prior to trial) Pacheco again stated that the robber looked like the guy in the pictures.

Finally, Pacheco was able to identify defendant in court, despite defendants claims to the contrary. Pacheco vacillated when pointedly asked if defendant was the robber. However, Pacheco also testified that maybe he could identify the robber in the courtroom. He pointed out defendant as the person with black hair sitting at the end of counsel table, wearing glasses. Pacheco said the person in court looked similar to the robber, but was thinner. Pachecos in-court identification was the third time Pacheco recognized defendant, after identifying defendant to Deputy Ruiz for the first time three and a half months after the robbery and a second time to Detective Finneran two years after the robbery. When defense counsel queried Pacheco, If Detective Finneran tells us that you told her that was the guy, would she be wrong? Pacheco said, No. Even in the heat of cross-examination, Pacheco maintained that he identified defendant to the detective prior to trial.

We conclude that there is no substantial likelihood that Pacheco misidentified defendant when he viewed the photographs. Defendant has not met his burden of establishing unreliability in the totality of the circumstances under federal constitutional standards.^[11]

D. The Trial Court Properly Refused to Remove a Deliberating Juror.

The jury began its deliberations on Monday, May 9, 2005. The next morning, the jury foreman sent the court a note that read in part, We have one juror who stated while first coming into the room they were never going to change their opinion before we even began deliberations. They have since stated we cannot change his or her mind. The note also indicated that the problem related to the first three counts involving the victim Pacheco.

The trial court first queried the jury foreperson and then asked each juror in turn for their perceptions regarding any failure to deliberate. The trial court started the hearing by questioning Juror No. 12 and went in reverse chronological order to avoid isolating the juror in question (Juror No. 3), and to be able to hear from the other jurors first.

The foreperson (Juror No. 10) testified that before deliberations began Juror No. 3 said, You will never get me to change my mind on the robbery charge [on count 3]. On the first full day of deliberations, the juror mentioned twice that she would not change her mind. When the jury returned to the subject and presented other evidence, the juror stated, I will not change my mind on this. When the foreperson reminded her to be flexible, the juror said, There is no way you can change my mind, and over the course of the deliberations repeated it five or six times.

When the trial court asked if the juror participated in considering the evidence concerning the robbery charges, the foreperson responded, It appeared that she would take things in, but each time we said, Have we done anything to alter your mind set? [the juror said,] No. I am not going to change my mind. Upon further probing by the trial court, the foreperson indicated that the juror [had] briefly given her opinions, but when asked about her opinions, she would say, You know my opinion. When the court asked if the juror participated in any meaningful interaction or consideration with everybody, the foreperson said, Thats hard to say because I dont know what she is absorbing. The foreperson then informed the court that the juror was folding pamphlets and putting letters in them while deliberations were occurring. The foreperson did not believe that the pamphlet folding distracted her, as her main focus remained on the discussions.

Juror No. 12 believed that a juror had made up her mind beginning that day, but not before. Juror No. 12 observed that Juror No. 3 had written in her notebook the count and whether it was a guilty or not guilty, but confessed he did not know when she had written the notes.

Juror No. 11 reported that Juror No. 3 had wanted to ask the foreperson a question privately, but when Juror No. 11 tried to interject a statement, Juror No. 3 said, I am not talking to you. Juror No. 11 replied that she thought they were all supposed to have input. Juror No. 11 said Juror No. 3s tone was very negative and disagreeable. That morning, Juror No. 3 said they were trying to persuade her. Juror No. 11 believed that Juror No. 3 was not willing to hear any part of any evidence. Juror No. 11 believed that Juror No. 3 did not share or want to be drawn out.

Juror No. 9 testified that Juror No. 3 was closed minded on one count but would not say that she was immovable. Juror No. 9 believed Juror No. 3 looked at the evidence, and considered other jurors opinions, and deliberated. She believed that Juror No. 3 just decided early.

Juror No. 8 testified that in the middle of the proceedings, about three quarters of the way through testimony, Juror No. 3 stated You know. I already heard what I had to hear. Juror No. 8 believed Juror No. 3 was not deliberating and did not want to hear any facts from the jurors. Juror No. 8 stated Juror No. 3 was not taking things into consideration.

Juror No. 7 testified that Juror No. 3 was not deliberating. Juror No. 3 did not participate in any of the discussions and when she did, she yelled at people. Juror No. 7 believed Juror No. 3 was focusing on stuffing envelopes and was not joining in the deliberations. Juror No. 7 stated that Juror No. 3 said in the hallway after one day of trial, I dont know why we are still here. I have heard enough. Juror No. 7 reported that when they initially sat down for deliberations, Juror No. 3 showed an unwillingness to want to talk about anything.

Juror No. 6 testified that Juror No. 3 said on the previous day she heard enough. However, Juror No. 6 admitted that Juror No. 3 looked at and considered the evidence for the first three hours of deliberations.

Juror No. 5 testified that he was not aware and did not notice any juror fail to deliberate. Juror No. 4 also believed that all jurors were deliberating.

Juror No. 3 was called in next. The trial court read to her portions of CALJIC No. 17.40 (Duty to Deliberate) and CALJIC No. 17.41 (How Jurors Should Approach Their Task). When asked by the court, Juror No. 3 denied ever saying before deliberations began I have heard enough. She stated that she had not reached any conclusions until after she entered the assembly room. She said she had deliberated with other jurors.

Juror No. 2 testified she was certain Juror No. 3 deliberated with other jurors. She stated Juror No. 3 was listening, interacting with other jurors, and considering evidence and opinions of other jurors for approximately five or 10 minutes. After 10 minutes, Juror No. 3 was listening but then became more quiet. Juror No. 2 did not believe that any juror came into the deliberations with his or her mind made up.

Juror No. 1 believed that Juror No. 3 was not deliberating. Juror No. 1 testified that Juror No. 3 refused to interact and discuss matters with other jurors except the foreperson. From 9:00 a.m. of the previous day to 2:30 p.m. that afternoon, Juror No. 3 had not given any input, despite the attempts of several jurors in eliciting input from her. Juror No. 1 stated that Juror No. 3 had not articulated her conclusions. Juror No. 1 admitted that Juror No. 3 listened to the readback of testimony because she was taking notes on it. Juror No. 1 complained that Juror No. 3 did not relate any evidence to the other jurors. Juror No. 3 would say this is how she feels. Everybody is entitled to their opinion. And she wasnt going to change it.

At the conclusion of the hearing, the court invited argument from counsel.

Defense counsel acknowledged that there were a wide variety of opinions from the jurors. He stated that several jurors found Juror No. 3 was deliberating at some point in time, reached an opinion, and then couldnt be taken off that opinion. Defense counsel noted jurors observed Juror No. 3 listening and taking notes. Citing the statements of several jurors, defense counsel said, The fact that you have these other jurors saying, There is no problem. I think everyone is deliberating, [was] again evidence that they [were] doing their job. Counsel expressed his opinion, So in terms of a failure to deliberate I dont think that we are there.

Touching upon the problematic subject of Juror No. 3s denial that she made up her mind before deliberations whereas other jurors testified she made statements before deliberations that she had made up her mind, defense counsel urged the trial court not to remove Juror No. 3. He believed the comment did not impact the deliberation process. Counsel stated, So I really dont know. I dont think it is juror misconduct. I dont think it is a failure to deliberate.

The prosecutor agreed with defense counsel that it appeared Juror No. 3 did deliberate at least for some period of time. The court asked the prosecutor how does it square the forepersons statement that Juror No. 3 walked into deliberation saying we are never going to get her to change her mind on the robbery charges, with the statements of other jurors that she has deliberated to some degree? The prosecutor opined that the jurors were using a different definition of deliberation than the parties were. He thought the jurors believed there had been a deliberation process because Juror No. 3 was saying words to them. It was his position, however, that this did not constitute deliberation. After further colloquy between the court and both counsel, the prosecutor stated, I agree with [defense counsel] that deliberating for [10] minutes is enough.

The trial court found that under the totality of the circumstances, Juror No. 3 [had] deliberated by a number of accounts for some period of time and is not refusing to deliberate. It believed that differences of opinion, differences in the pursuit of that opinion, differences in attitude, and requests for further readback demonstrated Juror No. 3 was willing to deliberate further on other items. The trial court did not remove Juror No. 3. It informed counsel it would reread CALJIC Nos. 17.40 and 17.41 to the jury as a whole.

Defendant now contends that Juror No. 3 had refused to deliberate. This, he claims, demonstrates that she was a biased juror and the refusal to excuse her violated [his] right to an impartial jury. He also maintains that Juror No. 3 committed juror misconduct.

In support of his claim, defendant asserts that seven jurors used strong terms in describing Juror No. 3s refusal to participate in deliberations regarding the Pacheco incident and nine jurors described her unwillingness to discuss the evidence. Defendant contends the jurors stated Juror No. 3 entered deliberations saying she would never change her mind, never seemed to acknowledge opposing viewpoints, insisted on the permanence of her position, made up her mind before leaving the courtroom for the deliberations room, was not willing to hear even any part of the evidence, did not appear to deliberate before making up her mind, came into deliberations with her mind made up, was not deliberating at all, and came into deliberations with her mind made up and expressed her fixed conclusion about three quarters of the way through trial. Other jurors described Juror No. 3 as being unwilling to discuss the evidence, only listened a few minutes before reaching her conclusion, refused to discuss the reasons supporting her views and did not listen to opposing views. Defendant complains that the trial court ignored the explosive allegation that Juror No. 3 announced her fixed position during trial and inexplicably accepted the word of Juror No. 3 and the other jurors that there was no problem.

We agree with the People that any juror misconduct or partial jury claim was waived. Counsels failure to request a mistrial on grounds of juror misconduct waives the matter on appeal. (People v. Stanley (2006) 39 Cal.4th 913, 950.) Even if the argument had not been waived, we find that the trial court had conducted a proper analysis.

The California Supreme Court in People v. Barnwell (2007) 41 Cal.4th 1038 (Barnwell), recently clarified that the correct standard of review for juror removal cases is the demonstrable reality standard. (Id. at p. 1052.) 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 bias was established. It is important to make clear that a reviewing court does not reweigh the evidence under either test. Under the demonstrable reality standard, however, the reviewing court must be confident that the trial courts conclusion is manifestly supported by evidence on which the court actually relied. (Id. at pp. 1052-1053.) We review both the evidence and the record of reasons the trial court provided. (Id. at p. 1053.)

As noted in Barnwell, supra, descriptions of whether a juror exhibited a disqualifying bias during deliberations may be in conflict. Appellate counsel has set forth numerous occasions where jurors plainly stated their perceptions that Juror No. 3 did not deliberate. However, other jurors, and Juror No. 3 herself, assured the court that Juror No. 3 had participated in deliberations.

We find that the trial court properly weighed the jurors testimony, took into account the attendant nuances, and correctly drew upon the observances it made during the trial and deliberations. (Barnwell, supra, 41 Cal.4th at p. 1053.) The court heard two jurors and Juror No. 3 state everything is peachy.

It received other evidence from different jurors who complained that Juror No. 3 was keeping to herself, was not talkative, and was not being real nice. When further pressed by the court, even the complaining jurors admitted, Well, no. She has deliberated somewhat.

The record amply supports the courts assessment. The foreperson, who raised the issue of the failure to deliberate, stated Juror No. 3 would take things in, briefly gave her opinions, and remained focused on the discussions while folding her pamphlets. Juror No. 12 believed Juror No. 3 made up her mind at the beginning of the second day of deliberations. Juror No. 9 believed Juror No. 3 looked at the evidence, considered other jurors opinions, and deliberated. Juror No. 6 testified that Juror No. 3 looked at and considered evidence for the first three hours of deliberation. Juror No. 5 was not aware of any juror failing to deliberate. Juror No. 4 testified that all the jurors were deliberating. Juror No. 3 stated that she had deliberated with other jurors and had not reached any conclusions until after retiring to the jury room. Juror No. 2 was certain that Juror No. 3 deliberated with others because she was listening, interacting, and considering evidence and other opinions, albeit for only five or 10 minutes. Juror No. 1 verified that Juror No. 3 listened to the readback of testimony because she was taking notes.

The trial courts finding that under the totality of the circumstances Juror No. 3 had deliberated was manifestly supported by the evidence it relied upon. (Barnwell, supra, 41 Cal.4th at p. 1053.) It considered the evidence that the jury had asked for a readback. Juror No. 3 was seen taking notes during the readback. Nine jurors acknowledged some level of participation in their deliberations by Juror No. 3whether it was by listening to evidence, expressing a forceful opinion to the others, taking things in, or focusing on the discussion while folding pamphlets. Several jurors acknowledged some period of time that they observed her participating in deliberations, whether it was five minutes, three hours, or two days.

We conclude that the trial court properly allowed Juror No. 3 to remain as a juror. Doing so did not deprive defendant of a unanimous or impartial jury.

E. Defendant Was Properly Sentenced to The Upper Term.

The trial court sentenced defendant to the upper term of five years in prison for the robbery offense. As an aggravating factor, it found that over time, defendants crimes were continuing and increasing in seriousness.

Citing Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 863-864] (Cunningham), defendant complains that he was improperly sentenced to the upper term because a judge had determined what the aggravating factors were, and not a jury, by the appropriate burden, beyond a reasonable doubt. We conclude the trial court properly sentenced defendant to the upper term because his recidivism was of increasing seriousness.

In People v. Black (2007) 41 Cal.4th 799 (Black), the California Supreme Court held that a defendants criminal history rendered him eligible for the upper-term sentence under the section 1170, subdivision (b), determinate sentencing law. (Black, at pp. 813, 818.) The court noted the United States Supreme Court has consistently said the right to a jury trial does not apply to the fact of a prior conviction, citing Cunningham, supra, 127 S.Ct. at p. 868, Blakely v. Washington (2004) 542 U.S. 296, 301; Apprendi v. New Jersey (2000) 530 U.S. 466, 490, and Almendarez-Torres v. United States (1998) 523 U.S. 224, 243. [R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. (Almendarez-Torres, at p. 243; Black, at p. 818.)

In this instance, defendant suffered one prior conviction. California Rules of Court, rule 4.421(b)(2), specifies that it is an aggravating circumstance if defendants prior convictions . . . are numerous or of increasing seriousness. The fact that defendant had at least one prior conviction made him subject to the imposition of the upper term. As long as there exists a single aggravating factor that renders a defendant eligible for the upper term, that single circumstance is sufficient to impose the upper term. (Black, supra, 41 Cal.4th at pp. 813, 816.)

The trial courts finding that defendants crimes were of increasing seriousness is part and parcel of a courts inherent power to impose increased punishment for a prior conviction. The determinations whether a defendant has suffered prior convictions, and whether those convictions are numerous or of increasing seriousness [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court. [Citation.] (Black, supra, 41 Cal.4th at pp. 819-820, fn. omitted.) The fact that a prior conviction occurred allows a trial court to assess related issues regarding the nature of the conviction that may be determined by those records, including whether those convictions were numerous or serious. (Id. at p. 819; People v. McGee (2006) 38 Cal.4th 682, 704.) In this instance, the upper term was appropriately imposed because the trial court could properly find defendants prior convictions were increasingly serious.

F. Cumulative Error.

Defendant asserts that reversal is required due to cumulative errors which deprived him of a fair trial. We do not agree, as there were no potential errors to accrue. We therefore reject defendants argument that cumulative error deprived him of a fair trial or warrants reversal of the verdict in whole or in part. Defendant is entitled to a fair trial, not a perfect one. (People v. Houston (2005) 130 Cal.App.4th 279, 320.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ RICHLI

Acting P. J.

/s/ GAUT

J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

^[1] All further statutory references will be to the Penal Code unless otherwise indicated.

^[2] The second set of impersonation, kidnapping, and robbery charges involved victim Jamie Zavala. Defendant was found not guilty of these charges.

^[3]Brady v. Maryland (1963) 373 U.S. 83, 87 (Brady).

^[4] Defendant suffered a prior 1994 conviction for unlawful sexual intercourse. ( 261.5, subd. (c).)

^[5] An acronym for some other dude did it. (People v. Benjamin (1975) 52 Cal.App.3d 63, 72.)

^[6] Only relevant evidence is admissible. (Evid. Code, 350.)

^[7]Evans v. Superior Court (1974) 11 Cal.3d 617, 625.

^[8] The prosecutor incorrectly identified exhibit No. 65 as exhibit No. 3.

^[9]Chapman v. California (1967) 386 U.S. 18, 24.

^[10] Defendant was wearing a blue uniform and a Sam Brown utility belt when he was arrested on August 8, 2003. The wearing of an item of apparel of the same color as that recalled by the witness does not by itself make a lineup unduly suggestive. (People v DeSantis (1992) 2 Cal.4th 1198, 1223.)

^[11] Defendants claim that Pacheco only identified the 1998 Crown Victoria and not defendant himself does not support his defense theory that some other dude did it. When Detective Finneran searched the 1998 Crown Victoria, she found a video camera wrapped in a towel shoved down into the wheel well on the drivers side of the vehicle. The video camera contained images of defendant taking bail fugitives to jail.