P. v. Figueroa
Defendant Jose Figueroa appeals from a judgment of conviction and sentence entered after a jury trial. Figueroa was convicted of a number of sex offenses committed against his stepdaughter. On appeal, Figueroa makes two arguments. Figueroa first challenges his conviction, arguing that there was prejudicial juror misconduct that arose when some female jurors went into a court bathroom where the victim was crying and may have seen her. Second, Figueroa challenges his sentence, arguing that the trial court violated his constitutional right to a jury trial by sentencing him to the upper terms on two counts, on the basis of facts not found by the jury.
We conclude that there was no juror misconduct or other error related to the fact that some jurors may have seen the victim crying in the bathroom during a recess taken during the victim's testimony. Court further conclude that the sentence did not violate Figueroa's right to a jury trial because the trial court had the discretion to choose an upper term pursuant to a change in California's sentencing law made in response to the United States Supreme Court's decision in Cunningham v. California (2007) 549 U.S. 270 (Cunningham). Court therefore affirm Figueroa's judgment of conviction and sentence.
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