P. v. Binkley



















Filed 9/17/12 P. v. Binkley CA2/4













NOT TO BE PUBLISHED IN THE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opinion has not been certified for publication or ordered published for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 FOUR




>

THE PEOPLE, Plaintiff and Respondent, v. RHONDA BINKLEY, Defendant and Appellant.

B233359 (Los Angeles County Super. Ct. No. KA092961)

APPEAL
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Carol Williams Elswick, Judge. Affirmed.

Robert Bryzman, under
appointment by the Court of Appeal, for Defendant and Appellant Rhonda
Brinkley.

Kamala
D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General,
Victoria B. Wilson and Kim Aarons, Deputy Attorneys General, for Plaintiff and
Respondent.





>_________________________________________



Rhonda Binkley appeals from a judgment entered upon her jury conviction
of possession of a controlled substance,
a violation of Health and Safety Code section 11377, and bringing a controlled
substance into jail, a violation of Penal Code section 4573.href="#_ftn1" name="_ftnref1" title="">>[1]> She
contends the court committed prejudicial error by failing to investigate a
juror’s statement expressing that she felt bullied and wanted to know her
rights. She also asserts that her
section 4573 conviction should be reversed because the evidence supporting the
conviction was obtained in violation of her href="http://www.mcmillanlaw.com/">constitutional right to silence. We affirm the conviction.



>FACTUAL AND PROCEDURAL SUMMARY

On
December 31, 2010,
appellant was driving a car with passengers Gabriel Almeida and Guillermo
Almeida.href="#_ftn2" name="_ftnref2" title="">>[2] Police officers Bryan Tromp and Roger Sardina
pulled over the car because its bright headlights were on. When the officers approached the car they saw
white powder on Guillermo’s leg and throughout the car.

Officer
Tromp ordered appellant to get out of the car and sit behind it. Officer Tromp helped Officer Sardina handcuff
Guillermo, who was resisting arrest.
Officer Tromp then handcuffed appellant.
Officers recovered a bag containing white powder located near appellant.


Appellant
was taken to a police station for booking.
Before arriving, an officer advised appellant that if she brought
narcotics into the jail, she would be charged with another crime. A sign at the jail also warned that it was a
felony to bring narcotics into the jail.

Leslie
Garcia, a records supervisor at the jail, conducted a search of appellant and
found two bags containing white powder on the floor beneath appellant’s
chair. Four more bags were recovered
from a jail cell where appellant had been placed before officers could conduct
additional searches. The substances in
the bags tested positive for methamphetamine.

Appellant
was charged in an information with possession of methamphetamine for sale
(Health & Saf. Code, § 11378; count 1) and bringing a controlled substance
into jail (§ 4573; count 3.) It further
alleged that appellant had suffered two prior prison terms under section 667.5,
subdivision (b), and three prior felony convictions under section 1203,
subdivision (e)(4). Guillermo was
charged with possession of methamphetamine for sale (Health & Saf. Code, §
11378; count 2).

Appellant
was convicted of the lesser offense of misdemeanor possession of a controlled
substance (Health & Saf. Code, § 11377) on count 1, and bringing a
controlled substance into jail on count 3.
Appellant admitted the prior conviction allegations. She was sentenced to an aggregate term of
four years in state prison, consisting of the lower term of two years on count
3, plus one year for each of the two prior prison term allegations. On count 1 the court imposed a 365-day
sentence to be served in any penal institution, to run concurrent to count 3.

This
timely appeal followed.



>DISCUSSION

I

Appellant contends
that the trial court erred by failing to investigate potential juror
misconduct, and that the error requires reversal of the judgment. We find no error.

The jury began
deliberations on May 18, 2011. The next
morning, the jury requested and received a readback of Detective Pedro Yanez’s
testimony regarding the text messages recovered from a cell phone found in the
car. Later that afternoon, the
foreperson advised the court that the jury had reached a verdict on one of the
counts but had been unable to reach a verdict on the other.

In the morning on
May 20, Juror No. 3 contacted the court clerk to say she felt bullied by
another juror and wanted to know her rights.
The clerk informed the court.

At a hearing
outside the presence of the jury that morning, the court stated its inclination
to “bring in all of the jurors, indicate to them that the court has some
concern that one . . . or a
number . . . of you . . . are having some problem with the
issue of intimidation or bullying. I
want to advise all of our jurors that everyone again needs to treat one another
courteously and I trust that you will do so.
If there are any additional questions or problems, put it in writing.”

Appellant’s
stand-in counsel requested to bring in Juror No. 3 only and inquire into the
nature and extent of the bulling to determine whether there was juror misconduct
constituting cause for a mistrial.
Guillermo’s trial attorney disagreed.
She cautioned that bringing the juror in individually “might make her
feel like she’s being bullied even more” or that the court would “put[] a
target on her . . . when she goes back in to deliberate
with the other jurors.” Guillermo’s
attorney suggested that the court admonish the entire panel and advise that if
any jurors feel “like you are still being bullied or intimidated, . . . to
please report it to [the] deputy who can then relay that [information] to the
court.” Appellant’s counsel agreed with
that course of action, stating “We can start there. And then obviously if she contacts us again—”


The jury was
brought to the courtroom and given the following admonition: “[O]ne or more than one of you might feel as
if you are being intimidated. You might
have feelings of pressure. You might
have feelings of being bullied, and if any one of you feels that way, you need
to bring it to the court’s attention, okay.
And you can do that just by putting it in writing and giving [it] to
Deputy Tkach. That’s what he gets paid
to do. And I just want to remind all of
you that, as jurors, you’re not to be an advocate for one side o[r] the
other. That was part of the instructions
you received. You are the impartial
judges of the facts. One of the other
instructions. And that you’re required
to treat one another courteously, with civility, which is also one of the
instructions that you received. So if
any one of you feels that, hey, there are some issues still going on or if you
don’t feel comfortable putting it in writing to the bailiff, then on the break,
say something to the bailiff, and he’ll make sure he tells me. Okay.”

The minute order
reflects that after jury deliberations resumed, appellant’s counsel “object[ed]
to the court’s admonition to the jury for the record.” The objection is not reported in the
reporter’s transcript.

That afternoon,
the foreperson advised the court that the jury remained unable to reach a unanimous
verdict on counts 1 and 2. After the
court asked whether the jury required any information to assist with the
deliberations, the foreperson responded, “It’s my impression that each and
every individual had made their decision and
can . . . justify their choice, and it seems that we [are]
still unable to come to a unanimous decision.”
Juror No. 7 suggested that the court “swap out some jurors,” and the
court responded, “We won’t be swapping out any jurors.”

After further
inquiry by the court, the foreperson stated that the last vote taken broke down
10 to two. Juror No. 3 told the court
“[t]here was a lot of confusion between the greater count and the lesser count”
and other jurors seemed to agree. After
conferring with the attorneys, the court clarified, “Count 1 is the alleged
possession for sale of a controlled
substance. . . . It is the greater
crime. . . . Simple possession[,] also known as
possession of a controlled substance[,] is the lesser
crime. . . . [Y]ou must find the defendant not guilty
of the greater crime in order to make whatever decision, if any, as to the
lesser crime. . . . I am not telling you in what
order you need to do that. Okay. You can do it in any order, but there must at
some point in time be a not guilty as to the greater crime.” The jurors agreed that this clarified the
issue and resumed deliberation.

Later that
afternoon, the jury submitted the following question to the court: “The jury inquires if there are conflicting
opinions[,] are they stuck in deliberations until a unanimous verdict is
reached?” The court answered no.

Less than an hour
later, the jury reached a verdict, finding appellant guilty of the lesser
offense of simple possession for count 1 and the offense of bringing a
controlled substance into jail for count 3.

The
Attorney General asserts appellant forfeited her claim by failing to object to
the court’s decision to proceed by admonishing the jury rather than
investigating whether there was good cause to discharge a juror. But the cases cited by the Attorney General
address a defendant’s forfeiture by failing to object to a juror’s continued
service after the court investigated potential cause for discharge. (See People
v. Lewis (2009) 46 Cal.4th 1255, 1308; People
v. Stanley (2006) 39 Cal.4th 913, 950; People
v. Holloway (2004) 33 Cal.4th 96, 124.) As the California Supreme Court has stated
with regard to the court’s obligation to investigate cause to discharge a
juror: “The duty to conduct an
investigation when the court possesses information that might constitute good
cause to remove a juror rests with the trial court whether or not the defense
requests an inquiry, and indeed exists even if the defendant objects to such an
inquiry.” (People v. Cowan (2010) 50 Cal.4th 401, 506.) Therefore, we conclude appellant did not
forfeit the claim.

Section
1089 provides: “If at any time, whether
before or after the final submission of the case to the jury, a juror dies or
becomes ill, or upon other good cause shown to the court is found to be unable
to perform his or her duty, or if a juror requests a discharge and good cause
appears therefor, the court may order the juror to be discharged.”

The
trial court’s authority to discharge a juror “includes the authority to conduct
an appropriate investigation concerning whether there is good cause to do so,
and the authority to take ‘less drastic steps [than discharge] where
appropriate to deter any misconduct or misunderstanding it has reason to
suspect.’ [Citation.] . . . ‘[A] trial
court’s inquiry into possible grounds for discharge of a deliberating juror
should be as limited in scope as possible, to avoid intruding unnecessarily
upon the sanctity of the jury’s deliberations.’” (People
v. Alexander (2010) 49 Cal.4th 846, 926-927.)

“‘[N]ot
every incident involving a juror’s conduct requires or warrants further
investigation. “The decision whether to
investigate the possibility of juror bias, incompetence, or misconduct—like the
ultimate decision to retain or discharge a juror—rests within the sound
discretion of the trial court.”’
[Citations.] ‘“[A] hearing is
required only where the court possesses information which, if proven to be
true, would constitute ‘good cause’ to doubt a juror’s ability to perform his
duties and would justify his removal from the case.”’ [Citation.]”
(People v. >Martinez (2010) 47 Cal.4th 911,
942.)

We
review for abuse of discretion the court’s determination to investigate the
possibility that a juror should be discharged.
(People v. >Alexander, supra, 49 Cal.4th at p. 927.)

Appellant
contends a hearing was necessary in order to determine: 1) whether the bullying felt by Juror No. 3
caused her to lose her ability to render a fair and unbiased verdict or to
continue with the deliberations; and 2) whether the juror or jurors bullying
Juror No. 3 had committed misconduct requiring discharge. We do not agree.

The
purpose of Juror No. 3’s communication with the clerk regarding what she felt
was bullying was to know what her rights were in relation to what she apparently
perceived as bullying. She did not say
that the bullying was affecting her ability to perform the requisite functions
of a juror. By asking what her rights
were, Juror No. 3 expressed an intention to assert those rights in the
deliberations, rather than to stop performing her functions as a juror.

Guillermo’s
attorney and the court were cautious about singling out Juror No. 3. Guillermo’s attorney was concerned that doing
so might exacerbate any issues she was having with one or more of the other
jurors. All parties agreed that the
court should admonish the entire jury to be courteous and reiterate that
complaints could be made to the bailiff.
This admonishment appears to have cured whatever issue previously
existed since no further complaints were lodged.

After the
admonishment, Juror No. 3 participated with the proceedings to clear up
confusion regarding the verdict on count 1.
She suggested that the jury needed clarification on the lesser and
greater offenses and the jury reached a verdict shortly after the court
provided that information. The
admonition served its function by stopping the conduct causing Juror No. 3
while preserving the integrity of the deliberative process.

“‘Jurors
may be expected to disagree during deliberations, even at times in heated
fashion.’ Thus, ‘[t]o permit inquiry as
to the validity of a verdict based upon the demeanor, eccentricities or
personalities of individual jurors would deprive the jury room of its inherent
quality of free expression.’ (>People v. Orchard (1971) 17 Cal.App.3d
568, 574 [(Orchard)].)” (People
v. Keenan (1988) 46 Cal.3d 478,
541.)

In
Orchard, after a juror sent the
foreperson a note stating her belief that the defendant was innocent, the
foreperson tore up the note and “angrily chastised [the juror] for 10 to 15
minutes” in front of the other jurors.
The juror expressed that this incident caused her to feel
“embarrassment, humiliation and a desire to leave as soon as possible and
causing her to vote . . . guilty.” (Id.
at p. 572.) The court noted that jurors
are expected to disagree and sometimes do so with anger. To permit courts to inquire into the validity
of a verdict based on these altercations would “deprive the jury room of its
inherent quality of free expression.” (>Id. at p. 574.) Thus, the court concluded that the statements
and conduct of the foreperson “cannot, as a matter of law, be considered of
such a character as was likely to have influenced the jury improperly.” (Id.
at p. 574.)

The California
Supreme Court approved Orchard in >People v. Keenan, supra, 46 Cal.3d 478.
In that case, the trial court denied the defendant’s motion for a new
trial on the ground that a juror had committed misconduct when he allegedly
“pointed a finger at [another juror], an elderly woman who was the lone holdout
against [the] death [penalty], and said, ‘If you make this all for nothing, if
you say we sat here for nothing, I’ll kill you and there’ll be another
defendant out there—it’ll be me.’” (>Id. at p. 540.) The California Supreme Court found no error,
reasoning: “Even if the described
‘threat’ occurred, we must conclude as a matter of law that it was not
prejudicial misconduct which impeaches the verdict. The outburst
described . . . was particularly harsh and inappropriate,
but as the trial court suggested, no reasonable juror could have taken it
literally. Manifestly, the alleged
‘death threat’ was but an expression of frustration, temper, and strong
conviction against the contrary views of another panelist.” (Id. at
p. 541.)

While we do not
know what conduct led Juror No. 3 to feel “bullied,” under the authorities
already discussed, heated, angry or passionate disagreements between jurors do
not constitute prejudicial misconduct.
As we have already discussed, Juror No. 3 did not report further
“bullying” after the admonition was given and she participated with the court
in its attempts to clarify confusion amongst the jurors about the lesser and
greater offenses. Whatever conduct the other
jurors engaged in did not improperly influence Juror No. 3.

Since any
investigation into conduct constituting misconduct must be as limited in scope
as possible so as to avoid intruding on the jury’s deliberative process (>People v. Alexander, supra, 49 Cal.4th
at p. 927), the court did not abuse its discretion in concluding that the
admonition provided was sufficient, and preferable to a hearing.



II

Appellant
asserts that her section 4573 conviction must be reversed because it was
obtained in violation of her privilege against compelled href="http://www.fearnotlaw.com/">self-incrimination under the Fifth
Amendment of the United States Constitution.
She contends that because she was arrested and brought to jail while in
possession of a controlled substance, appellant could not avoid prosecution
under section 4573 unless she admitted that she possessed the controlled
substance, a violation of Health & Safety Code section 11377, subdivision
(a). By remaining silent about her
possession of the controlled substance, she was compelled to enter the jail
while still in possession and violate section 4573.

Appellant
acknowledges that the California Supreme Court has rejected this basis for a
constitutional challenge and upheld the validity of the statute in >People v. Low (2010) 49 Cal.4th 372,
389-392, and People v. Gastello
(2010) 49 Cal.4th 395, 403-404. As the
court explained, the statute “is not premised on a testimonial communication,
but on the nontestimonial act of ‘knowingly bring[ing]’ prohibited drugs into a
jail or prison. . . . In purpose and effect, the
statute does not operate in a compelled testimonial manner. It simply targets the willful commission of a
new drug-related crime in jail.” (>People v. Gastello, supra, at p. 403.)

Accordingly,
we find no violation of appellant’s Fifth Amendment privilege against compelled
testimonial self-incrimination.



DISPOSITION

The judgment is affirmed.



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.







EPSTEIN,
P. J.



We concur:





WILLHITE, J.





MANELLA, J.