Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD216977 Kerry Wells, Judge.
McCONNELL, P. J.
A jury found Steve Harrington guilty of residential burglary (Pen. Code, §§ 459, 460) when another person, other than an accomplice, was present in the residence (Pen. Code, § 667.5, subd. (c)(21)). The jury also found that Harrington had suffered 10 prior convictions. The court determined the prior convictions qualified as five prior prison terms, two serious felony prior convictions and two strikes. The court dismissed the prison priors and one of the strikes and sentenced Harrington to 18 years in prison: eight years (twice the middle term) for residential burglary and five years for each serious felony prior. Harrington appeals, contending juror misconduct deprived him of due process and a fair trial. We affirm.
The jury's findings encompassed all of the charges and priors contained in the amended information.
FACTUAL BACKGROUND
On October 24, 2008, someone kicked in the door of a residence, entered the home, rummaged through a few rooms and left with a backpack and numerous valuables. One of the home's occupants was present during the burglary. She ran to a neighbor's house and called the police. The police arrested Harrington nearby. Harrington had the backpack and the other stolen items in his possession. The pattern on the soles of his shoes matched the mark on the door that was kicked in.
PERTINENT PROCEDURAL BACKGROUND
Before the jury entered the courtroom on the second day of trial during the People's case, the deputy district attorney stated that "one of the jurors... appear[ed] to be sleeping through some of the testimony" and "was sleeping during my opening statement." The deputy district attorney concluded, "[a]nd I just have some concerns about him missing critical parts of witness testimony because of that.... Just thought it would be important to put that on the record in case it becomes a problem and he's missing much of the trial."
The court replied, "I did notice yesterday Juror Number 7 appeared to have his head down. And I couldn't tell for sure initially when I was looking at him whether his eyes were closed or not. He at some points appeared to be looking down at his notebook, and at other times did appear as if he might be sleeping. I did start to watch him. And there were times when I was watching him, he then would look up. So I actually couldn't tell for sure whether he was sleeping or not. [¶] But... I do agree with you there is that possibility. So I am happy to keep a very close eye on him again today, and certainly both sides can, too, as well."
The court asked the deputy district attorney and Harrington, who was representing himself, whether they wished the court to take any further action. Both said no. The court then asked Harrington, "You're in agreement we should just continue to watch him today and make sure that he's staying awake?" Harrington replied, "Yes, ma'am.... [E]very time I looked over there... he seemed awake to me. I haven't seen him... asleep or nothing of that nature.... He wasn't doing no more than what the rest of the jurors were doing...."
When the jury reentered the courtroom, the court said, "I did want to make a comment to you all about the importance of staying awake during testimony. I know that sometimes that's difficult for some people, especially in the afternoon after you've had a nice big lunch. That can cause a problem to anyone under any circumstance. [¶] But I want to emphasize the importance of, obviously, I think it's obvious, staying awake and paying attention to the evidence. And if you feel yourself nodding off, sometimes I don't see it, I don't notice it, but you're the one that's going to notice if you're nodding off or somehow not getting to the point where you're paying attention, let me know. It's your obligation to let me know. And we'll take a break so you can take a stretch, get a cup of coffee."
Later that day, near the beginning of the court's instructions to the jury, the following occurred:
"THE COURT: [¶]... [¶] Juror Number 7, are you listening?
"JUROR 7: Yes.
"THE COURT: Okay. You've got your eyes closed. So I can't tell whether you've just got your eyes closed and you're listening or not.
"JUROR 7: No. I'm listening.
"THE COURT: Okay. Thank you, sir."
After the jury returned its verdict, Harrington asked the court to appoint counsel to represent him. The court granted the request. Appointed counsel filed a motion for a new trial. The motion argued the court erred by permitting Harrington to proceed in propria persona after a doubt arose about his competency to represent himself and to enter a valid waiver of his right to counsel. The motion stated that Harrington "didn't notice a sleeping juror" but made no other mention of the matter.
DISCUSSION
Harrington contends "[i]t... appears that Juror Number Seven slept through a significant portion of the trial." Harrington argues that he has shown juror misconduct, resulting in a presumption of prejudice that the People did not rebut. Harrington is mistaken in his premise and in his conclusion.
Juror misconduct usually leads to a rebuttable presumption of prejudice. (People v. Danks (2004) 32 Cal.4th 269, 302.) "[J]uror inattentiveness may constitute misconduct...." (People v. Bradford (1997) 15 Cal.4th 1229, 1349.) "A 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, ....' [Citation.] 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.]" (People v. Espinoza (1992) 3 Cal.4th 806, 821.) "The decision whether to investigate the possibility of juror... misconduct... rests within the sound discretion of the trial court." (People v. Ray (1996) 13 Cal.4th 313, 343.) "[T]he mere suggestion of juror 'inattention' does not require a formal hearing disrupting the trial of a case. [Citation.]" (People v. Espinoza, supra, at p. 821; accord People v. Bradford, supra, at p. 1349.)
Here, as in People v. Espinoza, supra, 3 Cal.4th at p. 821, there was a "mere suggestion of juror 'inattention.' " The record does not demonstrate that Juror No. 7 slept at all. Indeed, to Harrington the juror "seemed awake." The trial court found a mere possibility that Juror No. 7 was sleeping, and the court's further observations and inquiries did not show that the juror was sleeping. Thus, we cannot accept Harrington's premise that Juror No. 7 slept during trial (People v. Nesler (1997) 16 Cal.4th 561, 582) and no presumption of prejudice arose. Moreover, the court more than satisfied any duty of further inquiry by watching and questioning Juror No. 7, and by emphasizing to the jurors their duty to stay awake, pay attention to the evidence and notify the court if they were in danger of falling asleep or becoming inattentive.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J., IRION, J.