Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. MA 027677. Tomson T. Ong, Judge.
Robert H. Pourvali, under appointment by the Court of Appeal for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Defendant Willie James Chisom appeals his conviction for possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), misdemeanor battery (§ 242), and misdemeanor assault (§ 240). He contends on appeal (1) the trial court erred in dismissing a juror who was 15 minutes late to court; (2) the trial court abused its discretion in imposing the upper term on the felon in possession of a firearm count; and (3) the trial court’s use of aggravating factors in imposing the upper term violated his right to a jury trial under the Sixth and Fourteenth Amendments. We affirm.
All statutory references herein unless otherwise noted are to the Penal Code.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
After an argument with his live-in girlfriend, defendant was charged in a four-count information with making a criminal threat (§ 422), corporal injury to a spouse/co-habitant (§ 273.5, subd. (a)), assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), and possession of a firearm by a felon (§ 12021, subd. (a)(1)).
Obbie Johnson, who was also known as Obbie Brown, was living with defendant in Palmdale on September 23, 2003. That day, sometime in the evening, they had an argument because she had told him she was ready to leave him. Defendant threatened to kill her, put his arms around his neck, started to choke her, and said several times that he would kill her before he would let her leave him. Johnson felt herself passing out. Johnson’s friend Julie Little, who was at the house visiting, grabbed defendant and pulled him off Johnson. After the attack, Johnson could not get her breath and had a red mark on her neck. Her neck was sore for several weeks.
After their argument, Johnson locked defendant out of the house. Shortly thereafter, she and Julie Little went to police with a shotgun that Johnson had found underneath defendant’s bed. Defendant had previously showed her the gun and told her it was his; in addition, during a previous argument over Johnson’s leaving, defendant had pulled out the shotgun. At the time, Johnson was in the shower, and defendant came in and told her he was going to kill himself.
Deputy Sheriff Christopher Matthews met with Johnson at the Sheriff’s Station when she turned defendant’s shotgun in to the Sheriff’s Department. Although Deputy Matthews did not check the shotgun to see if it was functional, he did note that it was not loaded. Johnson told him that neither she nor defendant had been drinking at the time of their argument. Deputy Matthews observed that Johnson had a scarlet mark on her neck.
In 1992, defendant made threats against Latonya Taft, his girlfriend at the time, because she had left him and moved back in with her parents. Defendant threatened to kill her, her parents, and everyone at her house if she did not return to him. Defendant on other occasions choked her, hit her in the head with a chair, woke her up and put a knife to her chest, and rammed her car while she was driving on the freeway in an attempt to force her car off the road.
The parties stipulated to defendant’s five prior convictions.
Defendant testified on his own behalf that he had served three years in state prison on account of some of his felony convictions. He was released early for good behavior. After his release from prison in 2004, defendant trained to be an installer for cable TV, and currently works for ComCast. Defendant admitted that his relationship with Taft was tumultuous; they physically fought with each other on a daily basis. In addition, Taft ran over defendant with her car and stabbed him with a knife in the back.
On September 23, 2003, the day of his argument with Johnson, when defendant arrived home, Johnson was there. She asked him to pick up her friend Julie Little and some alcohol because they were going to watch Monday Night Football. Defendant observed both Johnson and Little drinking alcohol that night. Johnson routinely accused him of being unfaithful, and the night of their fight defendant asked her to move out. Johnson became hysterical, and defendant believed he might have grabbed Johnson’s throat. He also believed, in the heat of the argument, he may have told her he was going to kill her, but he did not intend to kill her. Defendant claimed Johnson was the aggressor, and prior to that time, they had not physically fought with each other. Defendant testified the shotgun was antique and not functional.
Defendant was not arrested for the altercation until January 2005.
The jury found defendant not guilty on counts one, two and three and guilty on count four of being a felon in possession of a firearm. On count two, the jury found him guilty of the lesser included offense of misdemeanor battery (§ 242), and guilty on count three of the lesser included offense of misdemeanor assault (§ 240).
The trial court sentenced defendant to the high term of three years on count four, to a term of six months on count two, to run consecutively, and stayed sentence on count three.
DISCUSSION
I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN THE DISMISSAL OF JUROR NO. 6.
Defendant argues that the trial court’s replacement of Juror No. 6, who was African-American, the same race as defendant, was an abuse of discretion because the dismissal of the juror, who was only 15 minutes late to court, unbalanced the composition of the jury and resulted in structural error.
A. Factual Background.
The second day of trial, as court was convening, the court held a sidebar conference concerning Juror No. 6, an African-American male, who was 15 minutes late. The court noted that there was “no cause,” there was “no line downstairs,” and there was “no call for emergency.” Defense counsel asked the court, which was apparently contemplating dismissing the juror, to wait a few more minutes before taking action. The court stated, “[t]he record should also reflect there are three other black males in the jury and the juror was ordered to be here at 9:58. The court starts at 8:30. There is no reason why he couldn’t be here. We get here an hour before he does. He is late. I’ll issue a body attachment for him.” At 10:23 a.m., Juror No. 6 entered the courtroom and apologized for being late. The court dismissed him and replaced him with alternate No. 1.
After the prosecution rested, the court stated for the record that it had made the body attachment order for Juror No. 6 at 10:18 a.m. after waiting 15 minutes for his arrival. At approximately 10:20 a.m., Juror No. 6 called the clerk to state he had car trouble, and Juror No. 6 arrived in court at 10:23 a.m.
Defendant moved for a mistrial, arguing the court acted precipitously in dismissing the juror, who had arrived two minutes after he called. The court pointed out that it had called the jury room and the check-in line to determine Juror No. 6’s whereabouts, to no avail. The court stated, “This court believed that it did not act precipitously. We exercised due diligence required by law because we don’t know if he will be here within moments of substitution or within hours. We had no clue. Your motion for mistrial is respectfully denied.”
B. The Dismissal of the Juror Was Not an Abuse of Discretion, Nor Did Substitution of the Alternate Result in Structural Error.
The trial court may remove a juror from the panel anytime prior to the verdict upon good cause shown that the juror is unable to perform his or her duty. (§ 1089; People v. Daniels (1991) 52 Cal.3d 815, 864.) The inability of the challenged juror must appear on the record as a “demonstrable reality.” The determination of good cause rests in the sound discretion of the trial court. (People v. Marshall (1996) 13 Cal.4th 799, 843.) While many courts have considered the question of juror dismissal, few have disturbed a trial court’s decision to discharge a juror for good cause. (People v. Halsey (1993) 12 Cal.App.4th 885, 892.)
Penal Code section 1089 provides, in pertinent part: “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 and draw the name of an alternate, who shall then take his place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors.”
Once the court is on notice that good cause may exist, it must conduct a hearing to determine whether the juror should be discharged. No “formal hearing must be held to determine good cause. . . . [I]t is up to the trial court to determine the appropriate procedure to follow when a question arises about a juror’s continued service.” (People v. Delamora (1996) 48 Cal.App.4th 1850, 1856.) The trial court’s finding whether good cause exists will be upheld on appeal if substantial evidence supports it. (People v. Guerra (2006) 37 Cal.4th 1067, 1158.)
In People v. Bell (1998) 61 Cal.App.4th 282 (Bell), a juror called the court on the second day of trial to state he had a medical emergency with his child and would call the court by 10:30 a.m. to update his situation; but in any event, the juror expected to be in court by 1:30 p.m. (Id. at p. 287.) Defense counsel requested that the court wait for the juror because he was the only African-American on the panel, and his discharge from the jury would upset its balance. The trial court dismissed the juror after expressing doubt the juror would actually return that day because the juror did not know exactly when he could return, and because the trial was almost over and the other jurors, alternates, and witnesses were being kept waiting. (Id. at p. 287-288.) Bell found these reasons were not an abuse of discretion. (Id. at p. 288.)
Similarly, in People v. Hall (1979) 95 Cal.App.3d 299, a juror informed the court on a Friday afternoon that he had to take his wife to the doctor on the following Monday morning. The trial court specifically ordered the juror to be in court by 11 a.m., and to telephone if he was unable to be in court at that time. (Id. at p. 305.) On Monday morning, the juror called the court and said he would be out all day. The trial court discharged the juror because it did not want to keep the other jurors waiting. (Id. at p. 306.) Hall upheld the trial court’s action, observing that the lower court’s exercise of discretion was “not rendered abusive merely because other alternative courses of action may have been available to the trial judge.” (Id. at p. 307.)
In People v. Smith (2005) 35 Cal.4th 334, the Supreme Court expressly relied on Bell and Hall to find no abuse of discretion where the trial court dismissed a juror who had a family emergency that required him to leave the state to tend to his elderly mother. (Id. at p. 348.) The juror could not tell how long he would be out of town, but was willing to come back if the trial could be delayed to accommodate him. Smith upheld the trial court’s dismissal of the juror and his replacement with an alternate, noting “when, as here, a juror has good cause to be absent from trial for an indefinite period, the trial court does not abuse its discretion in replacing that juror with an alternate juror.” (Id. at p. 349.)
Defendant here attempts to distinguish such cases on the grounds the anticipated absences in those cases were much greater than they were here. He contends Juror No. 6 was only 15 minutes late and offered a valid reason for being late; furthermore, there was no evidence the juror would otherwise be unable to perform his duties. This argument ignores the basis for the courts’ rulings in Hall, Bell and Smith -- the trial court in each instance was unable to determine whether and when the particular juror would return. Here, Juror No. 6 had not called; when he finally did call, it was well after the time called for the hearing. Thus, although in itself 15 minutes is not a long period of time, the court had no information indicating when, or if, the juror would return. The potential disruption to the trial was significant.
Furthermore, dismissal of the juror did not unbalance the jury and did not constitute structural error. The record indicates that even after Juror No. 6’s dismissal, three African American jurors remained. Under the Wheeler/Batson analysis, a defendant is not entitled to a jury of a particular racial composition; rather he or she is entitled to a jury selected with nondiscriminatory criteria. (People v. Williams (1997) 16 Cal.4th 635, 663.) In any event, structural error is limited to those situations where there is a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. (People v. Flood (1998) 18 Cal.4th 470, 493, 500.) The Supreme Court has found structural errors only in a very limited class of cases. The exclusion of a tardy juror is not one of these situations. (Id. at p. 500.)
II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN SENTENCING DEFENDANT TO THE UPPER TERM ON COUNT FOUR.
A. Factual Background.
Defendant’s probation report described defendant as “an ex-parolee with an intensive nine-year criminal record” with two prison terms, and noted that defendant had one prior conviction for domestic violence and one for assault with a deadly weapon. The report did recognize an eight-year gap in defendant’s criminal history, but stated that the current offense and his past conduct rendered probation unsuitable. The probation report listed no factors in mitigation.
At the sentencing hearing, the court noted that the jury found defendant not guilty of making criminal threats, found him guilty of the lesser offenses of misdemeanor assault and misdemeanor battery, and found him guilty of being a felon in possession of a firearm. In balancing the aggravating and mitigating factors, the court rejected defendant’s argument that his recent lawful conduct was a mitigating factor. The court found that defendant was the active aggressor because the jury rejected his argument that he acted in self-defense; further, the victim was vulnerable and defendant exploited her position of trust in committing the crimes. In imposing the upper term of three years on count four, the trial court stated the crime involved violence; further, the victim was vulnerable because she was in defendant’s home and therefore on his “turf” and defendant had “home field advantage,” thereby placing the victim at his mercy. The court noted that defendant had previously engaged in acts of violence that were serious and dangerous to society, such as attempting to run Taft off the road and threatening Johnson with the shotgun while she was in the shower. The trial court also stated “[defendant] has been in prison many times before or at least one single incident before, [which] indicates to this court that probation obviously did not work then and this court believes that it is not going to work now.” In weighing sentencing factors, the court found the aggravating circumstances substantial in comparison to the mitigating circumstances, warranting the high term on count four. Defendant was sentenced to six months on count two, with sentence on count three stayed under section 654.
B. The Trial Court Did Not Abuse Its Discretion.
Defendant argues that the trial court abused its discretion in sentencing him to the upper term on count four because he has “stayed out of trouble” for 10 years, maintained steady employment as a cable technician for several years, the victim did not sustain serious injury, and he was not armed during the argument; furthermore, the factors, such as the victim’s vulnerability and the fact the crime took place on defendant’s “turf” bore no relation to count four, but instead related to counts one through three on which the jury acquitted him.
A trial court is vested with liberal discretion in sentencing. (People v. Trausch (1995) 36 Cal.App.4th 1239, 1247.) Judicial discretion “implies the absence of arbitrary determination, capricious disposition, or whimsical thinking. . . . ‘When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge.’” People v. Henderson (1986) 187 Cal.App.3d 1263, 1268.) Sentencing courts have wide discretion in weighing aggravating and mitigating factors, and a court need not state its reasons for disregarding mitigating factors. (People v. Lamb (1988) 206 Cal.App.3d 397, 401.)
A single aggravating circumstance is sufficient to justify the imposition of an upper term sentence. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) However, conduct for which a defendant has been acquitted cannot be used in aggravation of the defendant’s sentence. (People v. Takencareof (1981) 119 Cal.App.3d 492, 498.)
Here, although the trial court relied on factors underlying counts on which the jury acquitted defendant, we find no abuse of discretion. At the sentencing hearing, the trial court relied on defendant’s other previous acts of violence, the vulnerability of the victim, and his prior convictions – facts unrelated to the acquitted charges -- to impose the upper term for the crime of felon in possession of a firearm.
III. Cunningham Issue.
Defendant contends that the trial court erred in imposing the upper term based on facts not found by the jury (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), and further contends that his prior convictions are no longer viable under Cunningham to support imposition of the upper term.
A. Defendant Did Not Waive Assertion of Cunningham Error.
As a threshold issue, respondent contends defendant waived the issue because he failed specifically to object under Apprendi, Blakely,or the Sixth Amendment, instead interposing a generalized objection to his sentence. We disagree. The forfeiture rule is inapplicable when “an objection would have been futile or wholly unsupported by substantive law then in existence.” (People v. Welch (1993) 5 Cal.4th 228, 237; People v. Hill (1998) 17 Cal.4th 800, 820.) At the time of defendant’s sentencing hearing on June 8, 2006, People v. Black (2005) 35 Cal.4th 1238, vacated in Black v. California (2007) ___ U.S. ___, 127 S.Ct. 1210 (Black), was controlling authority. Black held that the judicial factfinding incident to a judge’s exercise of discretion to impose an upper term sentence under California law did not implicate a defendant’s Sixth Amendment right to a jury trial. (People v. Black, supra, 35 Cal.4th at p. 1244.) The Supreme Court’s decision in Black rendered defendant’s objection futile under the rules of Apprendi and Blakely. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Cunningham, which in turn overruled People v. Black, supra, 35 Cal.4th 1238, had not yet been decided. Accordingly, defendant has not forfeited his claim that the sentencing procedure in his case violated the Sixth Amendment. (See People v. Black, (2007) 41 Cal.4th 799, 810-811; People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.)
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).
Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
B. Defendant’s Prior Conviction Supports Imposition of the Upper Term.
Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) The statutory maximum for Sixth Amendment purposes is “the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant.” (Blakely, supra, 542 U.S. at p. 303.)
In Cunningham, the Supreme Court applied Blakely to California’s determinate sentencing law and held that because imposition of the upper term depended upon aggravating circumstances based upon judicial fact finding, consistent with the constitutional principles set forth in Blakely, the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum. (Cunningham, supra, 549 U.S. at p. ___; 127 S.Ct. at p. 868.) However, Cunningham reaffirmed the rule that the trial court may increase the penalty for a crime based upon the defendant’s prior convictions without submitting that question to a jury. (Cunningham, supra, 127 S.Ct. at p. 868; see also Almendarez-Torres v. United States (1998) 523 U.S. 224, 243-244; Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at pp. 488, 490.)
Relying on prior precedent that under California law, the presence of a single aggravating factor can support imposition of the upper term (People v. Osband, supra, 13 Cal.4th at pp. 728-729), in People v. Black, supra, 41 Cal.4th 799 our Supreme Court held that the existence of a single aggravating circumstance which meets the constitutional requirements set forth in Blakely, exposes the defendant to the upper term as the relevant statutory maximum. (Black, supra, 41 Cal.4th at p. 813.) “[S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Ibid.)
Here, defendant’s prior convictions were sufficient to allow the court to impose the upper term.
DISPOSITION
The judgment of the superior court is affirmed.
We concur: PERLUSS, P. J., WOODS, J.