Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCE261327, Charles W. Ervin, Judge.
AARON, J.
I.
INTRODUCTION
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. We 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). We therefore affirm Figueroa's judgment of conviction and sentence.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
On the night of April 30, 2006, Figueroa took his stepdaughter, D., to the Barona casino. At the time, D. was 14 years old and in the eighth grade. D. had been told that Figueroa was her father, not her stepfather.
Earlier that evening, Figueroa had argued with his wife, Maria V., in their home. On his way out the door, he "pushed [D.] – not pushed in a mean way, just – just grabbed" her, and they got into Figueroa's car.
As Figueroa drove to the casino, he told D. that he planned to divorce her mother and said that he had a girlfriend who was prettier than D.'s mother who was going to meet him at the casino.
While at the casino, Figueroa set next to D. at the slot machines and gave her money to play while he played. Figueroa told D. that his girlfriend was in one of the casino's hotel rooms. D. was curious about the woman. After Figueroa had left D. alone for a while, he returned and told her that they were going to go see his girlfriend. Figueroa led D. up to room 8001.
When Figueroa and D. entered the hotel room, the bathroom light was on and the water in the sink was running. Figueroa went into the bathroom and turned off the lights and the water. D. sat on the bed, directly in front of the television. She watched television and changed the channels with the remote control for a little while. Figueroa sat behind her on the bed.
At some point, Figueroa pulled D. back, so that she was lying on her back. Figueroa got on top of her and pulled down her jeans. D. tried to prevent him from pulling down her underwear, but he held her down and covered her mouth. D. told Figueroa to "stop it," in a loud voice, but he continued to pull her pants off.
Figueroa separated D.'s legs. She pushed him, pulled his hair, and scratched his face. Figueroa pulled up D.'s jacket, shirt, and bra, and licked her breasts and her midsection under her breasts. He bit her between her right shoulder and right breast.
As Figueroa held one of D.'s hands above her head, he grabbed her other hand and tried to make her touch his penis. She held her hand closed in a fist, but part of her hand did touch his penis. After that, Figueroa engaged in intercourse with D. She was crying and telling him to stop. After Figueroa eventually got off of D., she grabbed her clothes, ran to the bathroom, and cried. D. stayed in the bathroom for a "long time." She heard Figueroa say that he was going to be downstairs and then heard him leave the room
While the two had been in the room alone, Figueroa had told D. that if she told anyone about what had happened, "he was going to deport [D.'s] mom so she would go to Mexico and she couldn't come back." After Figueroa left the room, D. thought about whether to tell anyone about the incident. She decided that she would go downstairs, pretend that nothing had happened, and later tell her mother.
D. went downstairs to the casino and thought about telling the person at the reception desk about what had happened while she returned the room key. D. decided not to tell that person because she was scared.
D. found Figueroa in the casino. At some point she told him that she wanted to go home. Figueroa told her to wait "just a little bit" and gave her money to play the slot machines. Figueroa and D. eventually drove home. On the drive home, Figueroa again told D. that he was going to divorce D.'s mother, and he said that D. and her sisters were going to have to live with him because her mother could not take care of them. He also again threatened D. that if she told anyone what had happened, D.'s mother would be deported.
Figueroa was the father of D.'s three younger stepsisters.
D. wanted to tell her mother about the incident at the casino but remembered that her mother was "really sick" because she "had just lost a baby." Maria had been in the hospital "for a long time," and when she returned home she looked "yellow" and "felt really bad." Her family had to help her "do things, because she couldn't do [them] by herself." D. decided to wait to tell her mother what had happened with Figueroa.
On Monday, May 1, D. did not go to school. She returned to school the following day, but her body hurt. D. told her physical education teacher that she was not feeling well, and the teacher excused D. from class.
On Wednesday, May 3, D. missed her school bus, so Figueroa drove her to school. When D. stopped at the school office to obtain a late slip, the school secretary asked her if there was something wrong. D. told the woman that nothing was wrong, but she had tears in her eyes. A school counselor saw D. crying, took D. into her office, and asked her what was wrong. At first, D. denied that anything was wrong, but she eventually disclosed what had happened to her.
D. was examined at the hospital that day. The examining physician found a tear in D.'s hymen that was consistent with penetration of the vaginal area.
A San Diego Sheriff's detective interviewed D. at the hospital, where she tearfully recounted the events of the night of April 30. D. was not returned to her home that night. Instead, after being interviewed by the detective, she was taken to the Polinsky Children's Center. She was later moved to a group home, and eventually went to live in a foster home with her sisters. D. was reunited with her mother four months before the trial.
Police were unable to find Figueroa for a number of months. They received information that Figueroa might have been staying at an address in Tijuana. On December 18, 2006, Figueroa called Detective Mario Zermeno, apparently under the misimpression that Zermeno was an attorney. Zermeno arranged to meet Figueroa. When Figueroa showed up for the meeting, Zermeno arrested him.
Figueroa testified at trial. Although he admitted taking D. to the casino on the night in question, he gave a very different version of what occurred that night. According to Figueroa, he met up with his girlfriend of six months at the casino, as he had done on a few occasions prior to that night. Figueroa gave his girlfriend the room number of the hotel room that he had rented, and they agreed to meet in the room 30 minutes later. D. agreed to go to the room with Figueroa. D. asked Figueroa where his girlfriend was, and then acted angry with Figueroa and behaved rudely toward him. She eventually locked herself in the bathroom of the hotel room and started crying. She told Figueroa that she did not want to leave because she wanted to meet "the bitch." When D. refused to come out of the bathroom, Figueroa left the hotel room and returned to the casino. D. eventually came down to the casino and played the slot machines with money that Figueroa gave her.
B. Procedural background
Figueroa was charged by information with forcible rape (Pen. Code, § 261, subd. (a)(2) (count 1)); attempted lewd act on a child 14 or 15 years of age (§§ 664 and 288, subd. (c)(1) (count 2)); and two counts of a lewd act on a child 14 or 15 years of age (§ 288, subd. (c)(1) (counts 3 and 4)).
Further statutory references are to the Penal Code unless otherwise specified.
Figueroa's first trial ended in a mistrial after the jury was unable to reach a verdict on any of the counts. The jury in a second trial convicted Figueroa on all counts.
The trial court sentenced Figueroa to an aggregate term of 12 years in state prison. The court selected count 4 as the principal term and imposed the upper term of three years on that count. The court imposed a consecutive eight-year term on count 1, a consecutive eight-month term (one-third the middle term of two years) on count 3, and a consecutive four-month term (one-third the middle term of one year) on count 2.
Figueroa filed a timely notice of appeal.
III.
DISCUSSION
A. Juror misconduct
1. Additional background
One afternoon after a 15-minute recess that was taken during D.'s testimony, outside the presence of the jury, the prosecutor informed the court that, "[D.] is kind of falling apart outside, and I think she needs a few minutes to kind of calm down."
The next day, again outside the presence of the jury, the prosecutor informed the court that the previous day, while D. had been "very obviously upset," a victim advocate and a detective had moved her to a bathroom to try to calm her down. Some of the female jurors were in that bathroom, and, according to the prosecutor, "might have seen [D.]." After noticing the jurors in the bathroom, the victim advocate and detective "moved [D.] all the way to the end of the hallway where there were no jurors around."
The trial court asked Figueroa's attorney whether she had anything that she wished to add. Defense counsel replied, "No, Your Honor." Figueroa's attorney did not raise any concern about the incident.
The record establishes that at some point during D.'s testimony, she started to cry, and the court took a recess. Specifically, seven days after the bathroom incident, during a discussion with the trial court, defense counsel stated, "The only comment I would make, while [D.] was testifying, the support person was sitting next to her, touching her, especially [during times when] she was waiting to talk, kind of encouraging her. I know I didn't say anything. I wanted the record to reflect that she was doing that while testimony was occurring." In response, the trial court said, "All right. You've noted that for the record. I did see one episode of the support person touching the victim's left shoulder, at the shoulder, and it was a time when the witness actually had broken down and was crying, and it was just prior to the court having to take a recess to facilitate her composure."
2. Analysis
Figueroa contends that his "convictions must be reversed because the exposure of some female jurors to the 'obviously upset' victim constitutes juror misconduct." According to Figueroa, "A juror's inadvertent exposure to extraneous information constitutes misconduct."
"We assess the effect of out-of-court information upon the jury in the following manner. When juror misconduct involves the receipt of information about a party or the case from extraneous sources, the verdict will be set aside only if there appears a substantial likelihood of juror bias. [Citation.] Such bias may appear in either of two ways: (1) if the extraneous material, judged objectively, is so prejudicial in and of itself that it is inherently and substantially likely to have influenced a juror; or (2) even if the information is not 'inherently' prejudicial, if, from the nature of the misconduct and the surrounding circumstances, the court determines that it is substantially likely a juror was 'actually biased' against the defendant. If we find a substantial likelihood that a juror was actually biased, we must set aside the verdict, no matter how convinced we might be that an unbiased jury would have reached the same verdict, because a biased adjudicator is one of the few structural trial defects that compel reversal without application of a harmless error standard. [Citation.]" (People v. Nesler (1997) 16 Cal.4th 561, 578-579.)
We conclude that there was no juror misconduct here, for two reasons. First, unlike the situation in People v. Nesler, in which the juror in question "sat in a bar while a woman revealed damaging information about [the] defendant for half an hour" (id. at p. 579), and then revealed this information to other jurors without disclosing the information to the court, it is not clear that any juror actually witnessed D. crying outside of the courtroom. While there is a possibility that one or more jurors "might" have seen D. in the bathroom, that was not certain. This is insufficient to establish that any juror, in fact, received out-of-court information about D.
Defense counsel did not ask the court to interview the jurors to determine whether any of them had, in fact, seen D. crying in the bathroom.
Second, even if one or more jurors did observe D. crying in the bathroom, such an observation necessarily would have been brief, at best, since the victim advocate and the detective removed D. from the bathroom immediately upon seeing the jurors. Further, such an observation would not have provided those jurors with any new information about the victim or this case, since, as the trial court's comment indicated, the jurors had just observed D. crying on the witness stand as she recounted the rape. The fact that D. was still upset immediately after the trial court called a recess during her testimony is not surprising, and cannot be considered to be "extraneous information."
Even if we were to conclude that this incident constituted juror misconduct that involved "the receipt of information about a party or the case from extraneous sources," there is simply no substantial likelihood that juror bias occurred based on the incident. The purported "extraneous material," i.e., the victim crying outside of the courtroom, was not itself objectively prejudicial, particularly in view of the fact that the victim had been crying on the stand only minutes earlier. Nor is it is substantially likely that any juror was "'actually biased'" against Figueroa as a result of the circumstance that one or more jurors may have briefly seen the victim crying in a bathroom.
B. The trial court did not err in sentencing Figueroa to upper terms
Figueroa contends that the trial court's decision to impose the upper terms on counts 1 and 4 violated his right to trial by jury. Specifically, Figueroa contends that the trial court erroneously relied on facts that were neither found by the jury nor admitted by Figueroa in imposing the upper terms. In support of this argument, Figueroa cites Cunningham, supra, 549 U.S. 270.
The court sentenced Figueroa to the upper term of eight years for forcible rape (count 1) and the upper term of three years for lewd conduct (count 4) based on the following factors: (1) the crime involved great violence and threat of bodily harm, which disclosed a high degree of callousness; (2) the victim was particularly vulnerable; (3) the manner in which the crime was carried out indicated planning and sophistication; (4) Figueroa "t[ook advantage of] a position of trust and confidence;" (5) Figueroa inflicted "substantial emotional injury and psychological trauma;"and (6) Figueroa "fled not just the scene, but the locale, in general, to avoid capture." (See Calif. Rules of Court, rules 4.421(a)(1), (3), (8), (11), 4.408(a), 4.421(c).)
In Cunningham, the Supreme Court held that California's sentencing law violated a defendant's Sixth and Fourteenth Amendment rights to trial by jury because it gave the trial judge, and not the jury, the authority to find facts that exposed the defendant to an upper-term sentence.
On March 30, 2007, the Legislature, with the governor's approval, amended section 1170, subdivision (b) ─ the determinate sentencing law. (Stats. 2007, ch. 3, § 2.) In July 2007, in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), the Supreme Court judicially reformed the former sentencing law to conform to the new law.
The court sentenced Figueroa on February 1, 2008 ─ after the amended version of the sentencing law took effect and after Sandoval became law. Under the amended statute, no additional factual finding is required for a court to exercise its discretion to impose an upper term. (§ 1170, subd. (b).) It was thus within the trial court's discretion to sentence Figueroa to the upper terms based solely on the jury's verdict.
To the extent that Figueroa is also arguing that retroactive application of the amended statute violates the prohibition against ex post facto laws because his crime was committed on May 1, 2006, before the changes in the sentencing law, we reject this contention as well. In Sandoval, the Supreme Court held that retroactive modification of the sentencing law to cases already on appeal did not violate the constitutional prohibition against ex post facto laws. (Sandoval, supra, 41 Cal.4th at p. 855.) The court reasoned that the amendment did not subject defendants to greater punishment for any particular crime, but rather, increased the amount of discretion that the trial court has to impose an aggravated sentence. (Id. at pp. 853-855.) We are bound by Sandoval, and find nothing in Figueroa's argument that distinguishes his situation from the situation that Supreme Court addressed in Sandoval concerning retroactive application of section 1170. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction"].)
Figueroa appears to concede that the holding in Sandoval applies here, however, he challenges the correctness of that decision.
Because Sandoval permits a trial court to apply the amended version of section 1170 in sentencing a defendant who committed his offenses prior to the date on which the amended law became effective, we reject Figueroa's challenge to his sentence based on the court's imposition of the upper terms on counts 1 and 4.
IV.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.