THE PEOPLE v. ROMMEL LENNIGAN (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Rommel Lennigan appeals from the judgment entered following his convictions by jury on count 1 – first degree residential burglary (Pen.Code, § 459) and count 2 – assault with a firearm (Pen.Code, § 245, subd. (a)(2)), each offense with firearm use (Pen.Code, §§ 12022.5, subd. (a), 12022.53, subd. (b)), and on count 5 – second degree vehicular burglary (Pen.Code, § 459), and following his plea of no contest to count 4 –possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)), with a court finding he suffered a prior felony conviction for which he served a separate prison term (Pen.Code, § 667.5, subd. (b)).  The court sentenced appellant to prison for 11 years 8 months.   We affirm the judgment.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993)

6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on March 1, 2009, Yvonne Castro, an acquaintance of Debbie Porter, indicated to Porter that appellant and codefendant Michael Sambrano ¹ wanted to collect a drug debt owed by Castro's boyfriend.   Castro and Porter later entered Castro's San Pedro residence, and appellant and Sambrano followed them inside.   Appellant asked Castro for a gun.   Appellant then approached Porter, put a gun to her head, and told her that he wanted a gun.   Porter later escaped and called 911 and, by the time the police arrived, appellant had burglarized Porter's car, which had been parked outside Castro's residence.   After police arrived, appellant was arrested and an officer recovered methamphetamine from appellant's person.

ISSUES

Appellant claims the trial court erred (1) by denying his motion to discharge Juror No. 8, and (2) by imposing the upper term on count 1.

DISCUSSION

1. The Trial Court Properly Refused to Discharge Juror No. 8.

a. Pertinent Facts.

After the jury was sworn, the following occurred outside the presence of the jury:  “The Court:  We have Mr. [Juror No. 8]. I told you to wait.   Now we'll hear from you.  [¶] [Juror No. 8]:  What I have to say, I don't want to say it in front of other people.  [¶] The Court:  I'm sorry.   It has to be done in front of other people.   The jury is gone.  [¶] [Juror No. 8]:  It bothers me that I have to say my name over there, where I live, what I do, what my wife do [sic ] in front of some gang members.  [¶] The Court:  These aren't gang members.  [¶] [Juror No. 8]:  Whatever they are.   They are staring [me down] and I don't like it.  [¶] The Court:  Okay, sir.   Thank you very much, sir.   [¶] [Juror No. 8]:  That's all I have to say.”

The next day, Sambrano requested that Juror No. 8 be dismissed, and Sambrano indicated as follows.   Juror No. 8 previously had maintained he had not heard any evidence, but he was now assuming appellant and Sambrano were gang members who were threatening him.   Juror No. 8 felt threatened and seemed very angry that his name had been revealed, and he had improperly assumed facts.   Appellant joined in Sambrano's request, commenting Juror No. 8 had made an assumption on major issues prior to deliberations.

The prosecutor opposed the request and indicated as follows.   Juror No. 8 had followed the appropriate procedure.   He had an issue to be discussed with the court and had waited as instructed to discuss it outside the presence of other jurors.   The court would instruct Juror No. 8 concerning what he could consider.

The court had Juror No. 8 enter the courtroom and the following occurred:  “The Court:  ․ Sir, yesterday you addressed the court regarding concerns about how some of the questioning was done regarding names and cities.  [¶] You remember that?  [¶] [Juror No. 8]:  Yes.”

After a later sidebar, the following occurred:  “The Court:  Good morning.   [¶] Yesterday you voiced some concerns about the way we proceeded in court.   [¶] [Juror No. 8]:  Yes. [¶] The Court:  Is there anything about that that would prevent you from being fair and impartial in this case or do you think you can decide the facts fairly based on the evidence?  [¶] [Juror No. 8]:  I think I could.  [¶] The Court:  Thank you, you can go back.  [¶] [Sambrano's Counsel]:  May we make inquiry?  [¶] The Court:  No, not at this time.   Your record is made.”   Juror No. 8 left the courtroom.

The court then stated, “I agree with the People's analysis.   What [Juror No. 8] did was voice a concern about his name and city being mentioned.  [¶] That's actually happened in the past one way or the other.   There are different ways that it's handled.   At this point based on his handling of it, very forthright and quick, I don't see any reason for excusing him.  [¶] Certainly that's without prejudice.”

b. Analysis.

Appellant claims the trial court erroneously denied his motion to discharge Juror No. 8. We disagree.  Penal Code 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 juror's inability to perform must appear in the record as a demonstrable reality.  (People v. Lynch (2010) 50 Cal.4th 693, 744 (Lynch ).)   Moreover, “The court's discretion in deciding whether to discharge a juror encompasses the discretion to decide what specific procedures to employ including whether to conduct a hearing or detailed inquiry.”   (People v. Beeler (1995) 9 Cal.4th 953, 989.)   We review for abuse of discretion a trial court's decision regarding whether to discharge a juror.   (Lynch, supra, 50 Cal.4th at p. 744.)

In the present case, we believe the trial court was in the best position to assess the strength of Juror No. 8's annoyance with the facts that (1) he had to provide his personal information in front of persons whom he initially asserted were gang members and

(2) they were allegedly “staring [him down].”   Insofar as Juror No. 8 complained about providing his personal information, he did not object to providing it at all, but indicated only that he was bothered about doing so in front of persons he asserted were gang members.   Moreover, the voir dire during which Juror No. 8 had been required to provide his personal information had been completed by the time Juror No. 8 complained to the court, i.e., Juror No. 8 was not expressing unwillingness to comply with court procedures or instructions.   The trial court immediately corrected Juror No. 8's misimpression that the persons about whom he was concerned were gang members.

Moreover, Juror No. 8 never stated that, as a result of either of the matters about which he had complained, he was unwilling to be a juror or would not be a fair and impartial juror.   He merely indicated he was “bother[ed]” by the procedure by which personal information had been elicited from him, and did not “like” the fact “they were staring [me down].”   Juror No. 8 never stated he was angry or felt threatened, and the trial court did not expressly agree with Sambrano's suggestions that Juror No. 8 was very angry or felt threatened.

The trial court effectively asked if Juror No. 8's concerns would prevent him from being fair and impartial, or if he thought he could decide the facts fairly based on the evidence.   Juror No. 8, responding to the court's query as to what he thought, replied he thought he could decide the facts fairly based on the evidence, and Juror No. 8 implicitly answered in the negative the court's query as to whether Juror No. 8's concerns would prevent him from being fair and impartial.   Juror No. 8 voiced no further concern, and made no additional comment suggesting he could not be fair and impartial or could not decide the facts fairly based on the evidence, but later simply said, “That's all I have to say.”   The court concluded Juror No. 8 had been very forthright and quick in his handling of the matter.   The trial court did not abuse its discretion by failing to conduct a further inquiry regarding, or by denying, appellant's request to discharge Juror No. 8. (Cf. People v. Bennett (2009) 45 Cal.4th 577, 621;  People v. Jablonski (2006) 37 Cal.4th 774, 807.)

2. The Court Properly Imposed the Upper Term on Count 1.

a. Pertinent Facts.

The probation report reflects appellant suffered two 2004 misdemeanor convictions, i.e., one for possessing 28.5 grams or less of marijuana (Health & Saf.Code, § 11357, subd. (b)), and one for providing false identification to a police officer (Pen.Code, § 148.9, subd. (a)).  He also suffered a 2005 felony conviction for possessing or purchasing cocaine base for sale (Health & Saf.Code, § 11351.5).   In the last case, the court placed appellant on probation but later revoked it and, in March 2005, sentenced him to prison for three years.

During the sentencing hearing in the present case, the court indicated as follows.   Appellant's criminal record consisted only of the 2004 Penal Code section 148.9, subdivision (a) conviction and the 2005 Health and Safety Code section 11351.5 conviction.  (The court did not expressly refer to appellant's 2004 conviction for possessing 28.5 grams or less of marijuana.)   The Penal Code section 667.5, subdivision (b) enhancement was based on the above mentioned 2005 conviction.   Appellant had no prior record of violence.   The court had no doubt about the guilt of appellant and Sambrano, but “the circumstances [were] rather unique.”

The court indicated as follows.   The court would use appellant's “prior record” to impose the six-year upper term on count 1. The court would impose a four-year middle term for the Penal Code section 12022.53, subdivision (b) enhancement pertaining to that count.   The court would impose one year for the prior prison term.   The conduct of appellant and Sambrano was essentially identical;  therefore, they should receive similar sentences.

Appellant argued the offenses underlying the prior convictions for Penal Code section 148.9, subdivision (a) and Health and Safety Code section 11351.5, were not as serious as other offenses committed by defendants generally.   The court later indicated it would also impose a consecutive eight-month term on count 5, for a total prison sentence of 11 years 8 months.   Subsequently, the court in fact imposed its indicated sentence, and appellant's sentence, as imposed, included a two-year concurrent term on count 4.

b. Analysis.

Appellant claims the trial court erroneously imposed the six-year upper term on count 1. He argues the trial court's stated reason for imposing the upper term, i.e., appellant's “prior record,” did not support imposition of the upper term.   We disagree.   A single aggravating factor is sufficient to justify imposition of an upper term.  (People v. Dreas (1984) 153 Cal.App.3d 623, 636.)   The court referred to appellant's 2004 conviction for violating Penal Code section 148.9, subdivision (a), which was a misdemeanor, and referred to appellant's 2005 conviction for violating Health and Safety Code section 11351.5, which was a felony.   A trial court may impose an upper term if “The defendant's prior convictions as an adult ․ [were] numerous or of increasing seriousness.”  (Cal. Rules of Court, rule 4.421(b)(2), italics added.)   The court's imposition of the upper term on count 1 was proper.

Moreover, even if the trial court indicated appellant's prior record consisted only of his Penal Code section 148.9, subdivision (a) conviction and Health and Safety Code section 11351.5 conviction, and erred by relying on that “prior record” to impose the upper term, it does not follow that we must reverse the judgment.

Appellant was convicted in the present case of another crime, i.e., a violation of Health and Safety Code section 11377, subdivision (a) (count 4), for which the court could have imposed a consecutive sentence but in fact imposed a concurrent sentence.  (Cal. Rules of Court, rule 4.421(a)(7), 4.425(a)(1).)   In addition to appellant's prior convictions for violating Penal Code section 148.9, subdivision (a), and Health and Safety Code section 11351.5, appellant suffered a 2004 conviction for possessing 28.5 grams or less of marijuana;  therefore, “The defendant's prior convictions as an

adult ․ [were] numerous or of increasing seriousness.”  (Cal. Rules of Court, rule 4.421(b)(2);  see People v. Searle (1989) 213 Cal.App.3d 1091, 1098.)   Appellant had suffered a prior prison term.  (Cal. Rules of Court, rule 4.421(b)(3).)   The court indicated the conduct of appellant and Sambrano was essentially identical;  therefore, they should receive similar sentences.   (Cal. Rules of Court, rule 4.408(a).)

Accordingly, even if the trial court erred by relying upon appellant's “prior record” as the trial court characterized it, there is no need to reverse the judgment since it is reasonably probable that, if the matter were remanded, the trial court would simply realign all of the previously discussed available aggravating factors to impose the upper term.   Any error was not prejudicial.   (Cf. People v. Edwards (1993) 13 Cal.App.4th 75, 80;  People v. Porter (1987) 194 Cal.App.3d 34, 39;  People v. Blessing (1979) 94 Cal.App.3d 835, 837–839.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Sambrano was a coappellant in this case until, on February 2, 2011, this court dismissed Sambrano's appeal at his request..  FN1. Sambrano was a coappellant in this case until, on February 2, 2011, this court dismissed Sambrano's appeal at his request.

KLEIN, P. J. ALDRICH, J.