Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA901053 Cara D. Hutson, Judge.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
Defendant Donald C. Dornin, Jr., appeals from judgment entered following jury convictions for possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1); count 1) and possession of ammunition by a felon (§ 12316, subd. (b)(1); count 2). The jury also found true allegations defendant had two prison priors (§ 667.5, subd. (b)). The trial court sentenced defendant to five years in state prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends his convictions for possessing a firearm and ammunition as a felon violate his constitutional Second Amendment right to bear arms. Defendant also argues the trial court erred in not discharging a juror who repeatedly fell asleep during the trial. In addition, defendant asserts the trial court erred in failing to give CALCRIM No. 375 on evidence of uncharged offenses. We reject defendant’s contentions and affirm the judgment.
I
FACTS
On June 20, 2009, at around 7:00 a.m., California Highway Patrol (CHP) Officer Witham received a report that an off-duty officer had seen someone driving a minivan erratically on the northbound 215 freeway, in San Bernardino. Witham responded to the area of the reported vehicle and noticed defendant’s minivan stopped in the middle of the street. Defendant, the only occupant in the minivan, was the registered owner. CHP Officer Adels, who arrived right after Witham, gave defendant field sobriety tests. Adels concluded defendant was under the influence of a controlled substance and arrested him for driving under the influence.
Witham and Adels searched defendant’s minivan. They found a laptop computer case on the back seat. Inside the case were a computer and a blue leather pouch. The pouch contained a semi-automatic handgun, rounds of ammunition in a plastic bag, and an empty magazine. Defendant told Adels he had traded his motorcycle frame for “Alan’s” computer. Defendant denied knowledge of the gun found in the laptop case.
Defendant testified that on June 18, 2009, he and his son, Kyle Dornin, met Alan at a casino. Alan paid defendant $280 and gave defendant his laptop in exchange for defendant’s motorcycle frame, which defendant believed was worth about $1,500. Kyle opened the computer case to look at the laptop, zipped up the case, and put it on the backseat of defendant’s van. It remained there until the officers discovered it. Defendant did not notice the pouch, containing the gun.
The next day, June 19, 2009, defendant went to work in Orange County. During his stay at a hotel in Orange County, defendant used methamphetamine. The following morning, while driving home, defendant noticed a car following him. Defendant exited the freeway and pulled to the side of the road. Defendant did not realize an off-duty CHP officer was driving the car. A couple of minutes later, marked patrol cars pulled up. Defendant was surprised when the police told him they had found a handgun in his van.
Defendant testified he was aware Alan, who was a friend, had previously gone to prison for gun possession. Defendant also acknowledged that he told Adels, during an interview at the police station, that Alan found the gun in the desert. Defendant claimed he could not provide Adels with any information on Alan. At trial, defendant stated he did not know where Alan was. Public defender investigator Jeffrey Foss testified he was unable to contact Alan.
Defendant admitted that he had convictions for felony forgery in 2004, commercial burglary in 2005, and evading arrest in a motor vehicle in 2007. Defendant was in prison twice and, at the time of the charged offenses, was on parole for evading arrest.
Defendant’s mother and father testified they had never seen defendant in possession of a gun.
II
THE CONSTITUTIONAL RIGHT TO BEAR ARMS
Section 12021, subdivision (a)(1) prohibits possession of a firearm by a felon and section 12316, subdivision (b)(1) prohibits possession of ammunition by a felon. Defendant contends both statutes are unconstitutional, as applied to defendant, because they expressly restrict the right to bear arms guaranteed by the Second Amendment. Defendant argues the prohibition of possession of guns by nonviolent felons, such as defendant, is not closely or even substantially related to the governmental interest of preventing firearm-generated violence.
Defendant acknowledges he did not raise this constitutional challenge in the trial court but argues it is not forfeited because questions of law, including constitutional challenges to statutes, can be raised at any time. Defendant also argues an objection need not be made if doing so would be futile because the law in existence at the time of trial does not support the challenge.
Normally, if a defendant fails to raise an objection in the trial court, he has forfeited his right to raise the claim on appeal. (People v. Yarbrough (2008) 169 Cal.App.4th 303, 310 (Yarbrough).) “‘“No procedural principle is more familiar to this Court than that a constitutional right, ” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.”’ [Citations.] ‘The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]’ [Citations.]” (In re Sheena K. (2007) 40 Cal.4th 875, 880-881.)
But, as a general principle, this forfeiture rule has its exceptions. (Bonner v. City of Santa Ana (1996) 45 Cal.App.4th 1465, 1476.) “On a number of occasions, California courts have held that constitutional issues can be raised for the first time on appeal in various circumstances, ” such as when a statute is challenged on constitutional grounds. (Id. at pp. 1476-1477; see also In re Sheena K., supra, 40 Cal.4th at p. 884.)
Here, we consider the merits of defendant’s constitutional challenge to sections 12021, subdivision (a)(1) (gun possession) and 12316, subdivision (b)(1) (ammunition possession), since the issue is “one of law presented by undisputed facts in the record before us that does not require the scrutiny of individual circumstances, but instead requires the review of abstract and generalized legal concepts.” (Yarbrough, supra, 169 Cal.App.4th at p. 310.)
In determining whether sections 12021, subdivision (a)(1) and 12316, subdivision (b)(1) are constitutionally overbroad and invalid, “‘we consider the following: “A statute is invalid on its face and wholly void only when incapable of any valid application. [Citation.] In determining a statute’s constitutionality, we start from the premise that it is valid, we resolve all doubts in favor of its constitutionality, and we uphold it unless it is in clear and unquestionable conflict with the state or federal Constitutions. [Citation.] A challenge to a statute’s constitutionality must demonstrate that its provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions. [Citation.] The corollary to the challenger’s burden is that if the court can conceive of a situation in which the statute can be applied without entailing an inevitable collision with constitutional provisions, the statute will prevail. [Citation.] A statute is not facially unconstitutional simply because it may not be constitutionally applied to some persons or circumstances; at a minimum its unlawful application must be substantial and real when judged in relation to the statute’s plainly legitimate sweep. Unless it is in total conflict with the Constitution, any overbreadth is cured by a case-by-case analysis of the particular fact situation. [Citation.] A statute will be declared invalid in its entirety only when its scope cannot be limited to constitutionally applicable situations except by reading in numerous qualifications and exceptions, i.e., rewriting it, or if it is invalid in certain situations and cannot be enforced in others without danger of an uncertain or vague future application. [Citation.]” [Citation.]’ [Citation.] ‘A statute is only overbroad if it “prohibits a ‘“substantial amount of constitutionally protected conduct.”’” [Citation.]’ [Citation.]” (Yarbrough, supra, 169 Cal.App.4th at p. 311.)
Here, defendant argues sections 12021, subdivision (a)(1) and 12316, subdivision (b)(1) are overbroad only as to nonviolent felons, such as defendant, in violation of the Second Amendment principles articulated in District of Columbia v. Heller (2008) 554 U.S. 570 (Heller). In Heller, the defendant was convicted of carrying a concealed weapon on residential property fully accessible to the public, in violation of section 12025, subdivision (a)(2) (carrying a loaded firearm in a public place). The majority in Heller, invalidated the provision, concluding that the Second Amendment guarantees “the individual right to possess and carry weapons in case of confrontation, ” self-defense, or other traditionally lawful purposes, unconnected with service in a militia. (Heller, at p. 592; see also Yarbrough, supra, 169 Cal.App.4th at p. 312.) The Heller court held “that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” (Heller, at p. 635.) The court in Heller recognized that “the inherent right of self-defense has been central to the Second Amendment right.” (Id. at p. 628.) In McDonald v. City of Chicago (2010) ___ U.S. ___ [130 S.Ct. 3020], the court held that this right is incorporated into the due process clause of the Fourteenth Amendment and thus made applicable to the states. (Id. at p. 3050.)
But the inherent right of self-defense is not unlimited. (Heller, supra, 554 U.S. at p. 626.) As defendant acknowledges in his appellate opening brief, the United States Supreme Court in Heller cautioned that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons....” (Ibid.) Defendant nevertheless argues the statutes he was convicted of violating do not withstand strict scrutiny or intermediate scrutiny since they were not narrowly tailored to a compelling interest or substantially related to an important governmental objective. He claims the statutes are overbroad as applied to defendant because the purpose of the statutes is the prevention of gun-related violence. Since defendant is a nonviolent felon, the statutes barring gun and ammunition possession by felons should not apply to him.
We disagree. The Heller court, however, specifically declined to determine which level of scrutiny should apply to restrictions on an individual’s right to bear arms. Instead, the court concluded that certain “longstanding prohibitions” simply survive Second Amendment scrutiny. (Heller, supra, 554 U.S. at p. 571.) Sections 12021, subdivision (a)(1) and 12316, subdivision (b)(1), prohibiting felons, including nonviolent felons, from bearing arms, fall within this category of prohibitions which are permitted despite the right to bear arms afforded by the Second Amendment.
The court in People v. Flores (2008) 169 Cal.App.4th 568, 575 (Flores) rejected an argument similar to defendant’s constitutional challenge. In Flores, the court held that section 12021, subdivision (c), which makes it a crime for a person with a qualifying misdemeanor conviction to possess a firearm, does not violate the Second Amendment as construed in Heller. It explained, in part: “Flores emphasizes that the Heller opinion carves out an exception to the Second Amendment’s protections for felons in possession of a firearm, but ‘says nothing about a ban based on a mere misdemeanor.’ We find this argument unconvincing. If, as Heller emphasizes, the Second Amendment permits the government to proscribe the possession of a firearm by any felon (including nonviolent offenders), we can see no principled argument that the government cannot also add certain misdemeanants, particularly those who have committed an assault by ‘means of force likely to produce great bodily injury.’ (§ 245, subd. (a)(1).) The public interest in a prohibition on firearms possession is at its apex in circumstances, as here, where a statute disarms persons who have proven unable to control violent criminal impulses.” (Flores, at pp. 574-575; italics added.)
Even though defendant does not have a history of committing violent felony offenses, he does have a history of committing felony crimes, including evading arrest in a motor vehicle and commercial burglary, as well as a history of committing misdemeanor offenses, which include fighting in public and threatening to commit a crime with intent to terrorize. Such crimes demonstrate a serious disregard for the law, as well as moral depravity, a propensity for violence, and dishonesty.
Sections 12021, subdivision (a)(1) and 12316, subdivision (b)(1) do not violate the Second Amendment as construed in Heller.
III
JUROR MISCONDUCT
Defendant contends he was deprived of his constitutional right to a fair trial and due process by the trial court’s failure to remove Juror No. 6, whom defense counsel claimed had repeatedly fallen asleep during the trial. We reject this contention.
After the parties submitted on the evidence and the court instructed the jurors, defendant’s attorney, David Cianchetti (Cianchetti), objected, out of the presence of the jurors, that “Juror Number 6 has repeatedly nodded off throughout the trial, particularly during jury instructions.” Cianchetti requested the court to excuse the juror. The court asked Cianchetti why he did not object when the juror was nodding off. The court could have then observed the juror and asked him if he needed a break. The court indicated it was concerned as to whether the juror nodded off during witness testimony and noted it was unclear as to when it occurred.
The trial resumed and, after closing arguments and additional final instructions, the bailiff escorted the jurors out of the courtroom, with the exception of Juror No. 6. The prosecutor and Cianchetti both stated they did not wish to inquire of the juror. The court told Juror No. 6 that the court had noticed the juror had dozed off several times. The court asked the juror if he recalled dozing off. The juror said, “No.” When asked if the juror had had a chance to hear all of the evidence and if the juror believed he could meaningfully deliberate, the juror responded, “Yeah.”
Out of the presence of Juror No. 6, as well as the other jurors, counsel and the court discussed defendant’s objection to Juror No. 6. Cianchetti renewed defendant’s request to excuse Juror No. 6, stating: “During the course of this trial starting from the opening day, he has been [dozing] off. The Court saw it. I brought it to the attention of your bailiff. She’s seen it and the District Attorney has seen it. So I don’t care what he says. [¶] I mean, what’s he supposed to say now? I am ready to deliberate, I wasn’t [dozing] off? [¶] Pure fact of the matter was, he was [dozing] off throughout the trial.”
The prosecutor submitted, without any comment, and the court stated that, since the juror had taken an oath to tell the truth, the court had no choice but to take the juror at his word, that he had not been dozing off and was alert during the trial. The court declined to remove the juror from the jury.
Defendant asserts that the trial court should have inquired of the other jurors individually as to whether they had noticed Juror No. 6 sleeping. In addition, defendant argues the trial court erred in concluding it had no choice but to rely on Juror No. 6’s statement denying dozing off.
A. Applicable Law on Juror Misconduct
The trial court may discharge a juror who “becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, ...” (§ 1089, 5th par.) This includes removal for sleeping during trial. (People v. Bonilla (2007) 41 Cal.4th 313, 350.) Once a trial court is put on notice that good cause to discharge a juror may exist, it is the court’s duty “‘“to make whatever inquiry is reasonably necessary” to determine whether the juror should be discharged. [Citation.] We have recently explained, however, that the mere suggestion of juror “inattention” does not require a formal hearing disrupting the trial of a case. [Citation.]’ [Citation.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1348 (Bradford).)
The trial court’s decision whether to investigate possible “‘“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.”’ [Citation.] A hearing is required only where the court possesses information which, if proved to be true, would constitute ‘good cause’ to doubt a juror’s ability to perform his or her duties and would justify his or her removal from the case. [Citation.]” (Bradford, supra, 15 Cal.4th at p. 1348.)
Although the courts have implicitly recognized “‘that juror inattentiveness may constitute misconduct, courts have exhibited an understandable reluctance to overturn jury verdicts on the ground of inattentiveness during trial. In fact, not a single case has been brought to our attention which granted a new trial on that ground. Many of the reported cases involve contradicted allegations that one or more jurors slept through part of a trial. Perhaps recognizing the soporific effect of many trials when viewed from a layman’s perspective, these cases uniformly decline to order a new trial in the absence of convincing proof that the jurors were actually asleep during material portions of the trial. [Citations.]’ [Citation.]” (Bradford, supra, 15 Cal.4th at p. 1349.)
B. Discussion
The only indication of Juror No. 6 sleeping during the trial consisted of defense counsel’s untimely objection. Upon inquiry by the court, Juror No. 6 stated he did not recall dozing off and affirmed that he had heard all of the evidence and believed he could meaningfully deliberate. Cianchetti, as well as the prosecutor, declined to question the juror further on the matter.
Since there was no corroborating evidence that anyone else noticed Juror No. 6 dozing off, and there was no evidence as to when or for how long he did so, the trial court did not abuse its discretion in concluding defense counsel had not established good cause to discharge the juror, particularly since Cianchetti did not even raise the objection until the parties had rested on the evidence and the court had instructed the jury.
We also reject defendant’s complaint that the trial court did not adequately investigate the matter by questioning other jurors. Without any evidence, other than Cianchetti’s belated, unspecific complaint that Juror No. 6 dozed off during the trial, the trial court was not required to conduct additional investigation, after questioning Juror No. 6. The court was required only to make whatever inquiry was reasonably necessary to determine whether the juror should be discharged. The court’s questioning of Juror No. 6 was sufficient.
The trial court’s handling of defense counsel’s concerns about Juror No. 6’s sleeping was well within the scope of its discretion. The court held a hearing shortly after defense counsel raised the objection, during which the court allowed both sides to question Juror No. 6. The court satisfied itself regarding the extent of any problem, and counsel had the opportunity during the hearing to present additional evidence. Defense counsel presented no additional evidence nor requested additional investigation or questioning of Juror No. 6 or anyone else. Under such circumstances, the trial court did not abuse its discretion in not conducting further independent inquiry or in refusing to dismiss Juror No. 6. (People v. Bonilla, supra, 41 Cal.4th at pp. 352-353.) As noted in Bradford, supra, 15 Cal.4th at page 1349, the courts have tended to reject objections to jurors dozing off “‘in the absence of convincing proof that the jurors were actually asleep during material portions of the trial. [Citations.]’” (Bradford, supra, 15 Cal.4th at p. 1349.)
IV
CALCRIM NO. 375, EVIDENCE OF UNCHARGED CRIMES
Defendant complains that the trial court erred in failing to give sua sponte CALCRIM No. 375, on the limited admissibility of evidence of defendant’s drug use. The evidence of drug use consisted of defendant’s trial testimony that the night before his arrest for gun possession, defendant stayed at a hotel in Orange County and used methamphetamine. Defendant asserts that this evidence required the trial court sua sponte to instruct the jury that the evidence of his drug use could not be used to show he had bad character or was disposed to commit the charged offenses. It could only be considered for the limited purpose of establishing motive for committing the charged offenses. We conclude the trial court did not have a duty to give CALCRIM No. 375 sua sponte.
A. Applicable Law
Normally, the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct. (People v. Collie (1981) 30 Cal.3d 43, 64; People v. Padilla (1995) 11 Cal.4th 891, 950.) The California Supreme Court in Collie, supra, 30 Cal.3d at p. 64, explained that “Evidence of past offenses may not improperly affect the jury’s deliberations if... the evidence is obviously used to effect one or more of the many legitimate purposes for which it can be introduced. [Citations.] Neither precedent nor policy favors a rule that would saddle the trial court with the duty either to interrupt the testimony sua sponte to admonish the jury whenever a witness implicates the defendant in another offense, or to review the entire record at trial’s end in search of such testimony. There may be an occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose. In such a setting, the evidence might be so obviously important to the case that sua sponte instruction would be needed to protect the defendant from his counsel’s inadvertence.” (Collie, at p. 64.)
The instant case does not qualify as such an extraordinary case falling within this exception. Counsel did not request CALCRIM No. 375, and the trial court was not required to give it sua sponte because the evidence of defendant’s drug use was highly relevant to defendant’s motivation for committing the charged offenses of gun and ammunition possession. The drug-use evidence supported the prosecution’s theory that defendant exchanged his motorcycle frame for money and the gun, with the intent of selling or trading the gun and ammunition for drugs. In addition, the evidence that defendant used drugs was not a dominant part of the evidence against defendant.
Under such circumstances, defendant failed to show that the admissibility of evidence of his past criminal conduct, drug use, required the trial court to give CALCRIM No. 375 sua sponte.
V
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J., KING J.