P. v. Harris

















Filed 1/16/13 P.
v. Harris CA2/3

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>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 THREE




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THE PEOPLE, Plaintiff and Respondent, v. HENRY HARRIS, Defendant and Appellant.

B232568 (Los Angeles County Super. Ct. No. BA364226)

APPEAL
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Jose I. Sandoval, Judge.
Affirmed as modified.

Randall
Conner, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.



_________________________







Defendant and
appellant, Henry Harris, appeals his conviction for sale of a controlled
substance with prior serious felony conviction, prior prison term and prior
drug conviction enhancements. (Health
& Saf. Code, §§ 11352, 11370.2; Pen. Code, §§ 667,
subds. (b)-(i), 667.5.)href="#_ftn1"
name="_ftnref1" title="">^[1] He was sentenced to state
prison for 15 years.

The judgment is
affirmed as modified.

BACKGROUND

Viewed in
accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence
established the following.

1. Prosecution
evidence.

On November 4, 2009, police officers Edward Kellogg and George Mejia were working an
undercover narcotics operation in downtown Los Angeles. Watching from an unmarked patrol car, the
officers saw defendant Harris sitting on a folding chair in the middle of the
sidewalk. A man with money in his hand
walked toward Harris. They spoke and
then Harris took two small red balloons from his pocket. Harris showed the balloons to the man. The man handed Harris some currency and
Harris gave the man the balloons. The
man put the balloons in his pocket and walked down the street.

Los Angeles Police
Detective Ronald Kitzmiller detained Harris and found $72 on him, including
22 one-dollar bills. Detective
James Miller detained the other man and found the two balloons, which were
subsequently determined to contain .25 grams of heroin.

Four years earlier,
Harris had been found in possession of 11 balloons of heroin and multiple
rocks of cocaine base. At the time, he
had been sitting on a crate on the sidewalk about one block from where the 2009
incident occurred.

2. Defense
evidence.

Harris
did not testify.

James
Brown testified for the defense. In 2007
Brown had been convicted of two felonies involving moral turpitude. Nine months later he had been convicted of
selling cocaine. In December 2008,
Brown was arrested by Officer Mejia for selling drugs. According to Brown, Mejia lied at the
preliminary hearing in that case when he testified he had seen Brown selling
drugs.

CONTENTIONS

1. The conviction must be reversed because at
least one juror was actually biased against Harris.

2. The trial court miscalculated Harris’s
presentence custody credits.

DISCUSSION

> 1. There
was no showing of juror bias.

Harris contends his
conviction must be reversed because the record demonstrates that at least one
of the jurors was biased against him.
This claim is meritless.

a. Background.

At the time of
trial, Harris was in a wheelchair. In
the middle of the trial, and in the presence of the jury, Harris fell out of
the wheelchair and onto the courtroom floor.
Paramedics were called and the trial court had the jurors step into the
jury room. After examining Harris, the
paramedics advised he was complaining of chest pain and had to be taken to the
hospital.

The jurors returned and the trial
court told them: “Ladies and gentlemen,
you saw what occurred here. The
defendant fell out of his wheelchair.
While you were absent we obtained medical attention for him. The paramedics have arrived and they are
taking him to the hospital for treatment of his complaints. I don’t know whether or not this is anything
that’s going to get in the way of trial . . . . [C]ounsel are willing to come back tomorrow
and we’ll see if the defendant is sufficiently capable of rejoining us for the
closing. With that, I’ll ask the
jurors . . . to return tomorrow at 11:00 a.m.”

The next morning, href="http://www.mcmillanlaw.com/">defense counsel asked for a mistrial,
saying a prospective prosecution witness, Officer David Chapman, may have overheard
one of the jurors say Harris had faked the wheelchair incident.href="#_ftn2" name="_ftnref2" title="">^[2] The trial court said it
would review the relevant law. The court
then called in the jurors and told them the trial had to be delayed for several
days because Harris was receiving medical treatment.

When trial resumed
several days later, defense counsel renewed the mistrial motion. The trial court asked Officer Chapman,
“[W]hat did you see or hear any of the jurors say?” The following colloquy occurred:

“Officer Chapman: Your Honor, I heard one male – I couldn’t
tell you specifically who it was – state that quote –

“The Court: Just be honest. Just say it.

“Officer Chapman: ‘I call bullshit on that.’

“The Court: Okay.

“Officer Chapman: I don’t believe it was a conversation between
more than one person, it was just a statement that he made. I couldn’t tell you who it was directed to or
even exactly who made it.

“The Court: So you don’t know who?

“Officer Chapman: I do not.

“The Court: Do you know that it was in fact a member of
the jury?

“Officer Chapman: I believe it was.

“The Court: Are you sure?

“Officer Chapman: Not 100 percent.

“[Defense
counsel]: May I just inquire if looking
at the jurors would refresh his recollection as to who it was?

“Officer Chapman: I did look as I walked in today. I could not recognize him.”

Based on this
inquiry, the trial court determined it would raise the incident with the
jury: “What I will do is I’ll ask of the
jurors if anybody blurted anything out.
If that juror . . . identifies himself, then I’ll take action
on that. I’ll take him sidebar to
determine if he can continue to remain fair.”
The court added:
“[Officer Chapman] thinks it was a juror, can’t be sure, doesn’t
know who. So I’ll raise the issue. I also intend on instructing the jury
generally with the following admonition.
Let me read that into the record . . . .”

When the jurors
returned to the courtroom, the trial court said: “Last week after Mr. Harris had his
medical episode, I just want to inquire of the jury. You may recall I admonished you earlier not
to discuss this case with anyone until everything is completed and you’re in
the jury room deliberating with the jurors.
Did anybody make any statement, volitionally or otherwise, about what happened
last week as you were leaving or in the elevator or anything like that? [¶]
Okay. I see no hands. [¶]
With that, we’re going to continue the trial.”

The trial court
subsequently informed counsel it was denying the mistrial motion. As part of its final instructions to the jury
before deliberations began, the trial court said: “Last week Mr. Harris had that medical
emergency that we all witnessed here in the courtroom. He’s since received treatment and is now able
to resume trial. In your deliberations
of this case, do not consider any sympathy nor any prejudice towards the
defendant[] because of that medical emergency.”


b. Legal
principles.

“An accused has a
constitutional right to a trial by an impartial jury. [Citations.]
An impartial jury is one in which no member has been improperly
influenced [citations] and every member is ‘ “capable and willing to
decide the case solely on the evidence before it” ’ [citations].” (In re
Hamilton (1999) 20 Cal.4th 273, 293-294.) “Any presumption of prejudice [arising from
juror misconduct] is rebutted, and the verdict will not be disturbed, if the
entire record in the particular case, including the nature of the misconduct or
other event, and the surrounding circumstances, indicates there is no
reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased
against the defendant.
[Citations.]” (>Id. at p. 296.)

“Section 1089 authorizes the trial
court to discharge a juror at any time before or after the final submission of
the case to the jury if, upon good cause, the juror is ‘found to be unable to
perform his or her duty.’ A trial court
‘has broad discretion to investigate and remove a juror in the midst of trial
where it finds that, for any reason, the juror is no longer able or qualified
to serve.’ [Citation.] A juror’s inability to perform
‘ “must appear in the record as a ‘demonstrable reality’ and bias may not
be presumed.” [Citations.]’ [Citation.]
We review the trial court’s determination for abuse of discretion and
uphold its decision if it is supported by substantial evidence. [Citation.]”
(People v.
Bennett (2009) 45 Cal.4th 577, 621.)

“ ‘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. [Citation.] The court does not abuse its discretion
simply because it fails to investigate any and all new information obtained about
a juror during trial.’ ” (>People v. Virgil (2011) 51 Cal.4th
1210, 1284.)

c. Discussion.

Harris
contends his conviction must be reversed because the record shows at least one
juror was actually biased against him as a result of witnessing the wheelchair
incident. This claim is meritless
because the alleged bias does not appear in the record as a demonstrable
reality, and we cannot say the trial court abused its discretion in failing to
investigate further. Indeed, the claim
of juror bias appears to be based on nothing more than speculation.

Harris argues there
was sufficient evidence of juror bias because Officer Chapman “informed
the court that a male juror riding the courthouse elevator with other jurors
had accused appellant of staging a medical emergency in the courtroom,” the
“juror’s remark conclusively demonstrated his actual bias against appellant,”
and his subsequent “refusal to disclose his identity to the court as the juror
who spoke in the elevator demonstrated the juror’s consciousness of guilt and
intent to judge the case based upon impermissible factors.”

But, as the
Attorney General points out, hardly any of these alleged facts are actually
supported by the record. What the record
does show is that, apparently in the aftermath of Harris falling from his
wheelchair, Officer Chapman overheard a remark which might have been made by a
juror and which might >have referred to the wheelchair
incident.

Although Chapman
thought one of the male jurors had made the remark, he wasn’t sure. Looking at the jury subsequently, Chapman
could not identify the speaker. Chapman
never told the trial court the remark had been made in front of other jurors;
Chapman said: “I couldn’t tell you who
it was directed to or even exactly who made it.” There is no way to tell from the record
what the remark meant because it had no context; apparently no one said
anything in response and the speaker did not say anything else. Chapman did not tell the trial court he
believed he knew what the remark signified.
Harris’s claim about the juror’s subsequent act of dishonesty is again
based on speculation. If the elevator
remark had not been made by a juror, or
if it had been made by a juror but not in reference to the wheelchair incident,
then the jury’s silence when questioned by the trial court did not reveal any
misconduct whatsoever.

In response to
these problems, Harris argues:
“[R]espondent invites this court to presume that some event, other than
appellant’s medical emergency, inspired someone other than one of appellant’s
jurors” to make the remark “soon after the judge released appellant’s jury from
the courtroom due to appellant’s medical emergency. But, in place of speculation, this court may
rely on the trial court’s sound view that a juror had referred to appellant’s
medical emergency, which it demonstrated by questioning the jury and by
admonishing the jury in response to Chapman’s report, despite his inability to
identify the male juror in question.”

This argument is
meritless. Contrary to Harris’s
assertion, the record does not demonstrate the trial court concluded
Officer Chapman overheard a juror reacting to Harris falling out of his
wheelchair. Rather, given the ambiguity
of Chapman’s report, it appears the trial court was merely trying to gather
more information about what, if anything, had happened. When no juror came forward, the trial court
dropped the matter.

Something similar occurred in >In re Hitchings (1993) 6 Cal.4th 97, where a referee concluded a juror
had committed misconduct by lying
about her pretrial knowledge of the case, discussing the case with a non-juror,
and then denying the discussion took place.
The Attorney General argued the presumption of prejudice arising from
this juror’s misconduct was rebutted by the referee’s additional conclusion
there was no credible evidence the juror had prejudged the defendant’s
guilt. Hitchings rejected this argument because the rebuttal evidence was
“simply too ambiguous to be probative,” and therefore did not “constitute
substantial evidence to support the referee’s conclusion that [the juror] did
not prejudge the case.” (>Id. at p. 122.)href="#_ftn3" name="_ftnref3" title="">^[3]

Here, too, for all that the
ascertained facts show, the man making the elevator remark might not have been
a juror, or he might have been a juror whose statement had nothing whatsoever
to do with Harris falling out of his wheelchair. This does not prove by a demonstrable reality
that one of Harris’s jurors was actually biased against him, and we conclude it
was not an abuse of discretion for the trial court to curtail its investigation
into the incident when no juror admitted having made the remark. (See People
v. Bennett, supra, 45 Cal.4th at p. 621 [juror’s inability to perform duty
under section 1089 must appear as demonstrable reality; bias may not be
presumed]; see also People v. Schmeck (2005)
37 Cal.4th 240, 295, disapproved on other grounds in People v. McKinnon (2011) 52 Cal.4th 610, 637-638 [“The trial court
is required to hold [an evidentiary] hearing only when the defense adduces
evidence demonstrating a ‘strong possibility that prejudicial misconduct has
occurred,’ and generally a hearing is unnecessary unless there is a material
conflict in the evidence presented by the parties.”]; People v. Seaton (2001) 26 Cal.4th 598, 676 [“The specific
procedures to follow in investigating an allegation of juror misconduct are
generally a matter for the trial court’s discretion.”].)

The trial court did not abuse its
discretion by refusing to declare a mistrial based on Harris’s claim of juror
bias.

2. Trial
court miscalculated Harris’s presentence custody credits

As the Attorney General properly concedes, Harris’s
presentence custody credits were miscalculated.
“A sentence that fails to award legally mandated custody credit is
unauthorized and may be corrected whenever discovered. [Citation.]”
(People v. Taylor (2004) 119
Cal.App.4th 628, 647; see also People
v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8 [“The failure to award
an adequate amount of credits is a jurisdictional error which may be raised at
any time.”].)

Harris was arrested on November 4, 2009, and
sentenced on April 19, 2011. For
this period of time, he was entitled to 532 actual days of presentence
custody credit, not 531 days. (See >People v. Morgain (2009) 177 Cal.App.4th
454, 469 [“defendant is entitled to credit for the date of his arrest and the
date of sentencing”]; People v. Browning
(1991) 233 Cal.App.3d 1410, 1412 [day of sentencing counted for presentence
custody credits even though it was only partial day].) This would have resulted in a total of
798 days custody credit. We will
order the judgment modified to correct this error.href="#_ftn4" name="_ftnref4" title="">^[4]

DISPOSITION

The judgment is
affirmed as modified. Harris is entitled
to one additional day of actual presentence custody credit for a
total of 798 days of presentence custody credit. The clerk of the superior court is directed
to prepare and forward to the Department
of Corrections and Rehabilitation an amended abstract of judgment.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS









KLEIN,
P. J.





We concur:







CROSKEY,
J.









ALDRICH,
J.