Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. FSB700196, Ronald M. Christianson, Judge.
Linda K. Harvie, 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, Rhonda Cartwright-Ladendorf, and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
I. INTRODUCTION
Defendant Aubrey Colie Johnson appeals from his conviction of possessing cocaine base for sale (Health & Saf. Code, § 11351.5) and resisting an executive officer (Pen. Code, § 69). Defendant contends (1) the trial court failed to adequately investigate a claim that a juror overheard the prosecutor talking to a police officer witness, and (2) Health and Safety Code section 11351.5 violates constitutional equal protection principles because it imposes a higher punishment for possession for sale of cocaine base than for possession for sale of powdered cocaine. We conclude that defendant’s claims of error were forfeited by his failure to raise timely objections in the trial court, and, moreover, the claims of error are meritless. We therefore affirm.
II. FACTS AND PROCEDURAL BACKGROUND
A. Defendant’s Crimes
Because defendant does not raise any issue on appeal specifically involving the underlying facts, our statement of facts will be abbreviated.
On February 19, 2007, San Bernardino Police Officers Jesus Vega and Christopher Flowers were riding in uniform in a marked police car in downtown San Bernardino, an area known for gang and drug activity. They contacted three persons, one of whom was defendant, who were loitering outside an apartment complex. Officer Vega conducted a consensual search of defendant and found two cellular telephones and $203 in cash in his pockets. Officer Vega saw something plastic sticking out of defendant’s belly button; at the officer’s request, defendant lifted his shirt, and the officer saw a plastic sandwich bag containing what appeared to be white cocaine rocks.
Defendant resisted the officers’ attempts to handcuff him, and it took four officers to subdue and handcuff him.
The officers removed a baggie, which contained four individually-wrapped rocks of cocaine, from defendant’s belly button. From their training and experience, Officers Vega and Flowers opined that this was a usable quantity of cocaine base that was possessed for sale. A criminalist confirmed the substance was cocaine in base form, and the weight of the four bindles was 1.864 grams, including packaging.
B. The Juror Inquiry
On September 6, 2007, after the jury had been selected but before the presentation of any testimony, the prosecutor informed the court that he had been talking to police officer witnesses in the hallway outside the courtroom when he noticed that a juror (Juror No. 6) had been sitting nearby. The trial court called Juror No. 6 into the courtroom outside the presence of the other jurors. Juror No. 6 stated she had been sitting in the hallway because she had taken the bus to the courthouse that morning. She admitted she had heard the prosecutor and witnesses talking and had heard about something being in someone’s belly button, which “sounded funny.” She did not overhear anything else, and she did not tell any of the other jurors what she had heard. The court then asked Juror No. 6 if any other jurors had been present when she overheard the conversation, and she replied, “One came up shortly after me, so I’m not sure if she was there or not.” Juror No. 6 agreed to follow the instruction telling her to disregard any information she had heard outside the courtroom. The court stated it appeared that Juror No. 6 had overheard only “a snippet of a sentence or two regarding something that is going to come in during the testimony.” The court, prosecutor, and defense counsel agreed there was no reason to excuse Juror No. 6.
C. Jury Verdict and Sentencing
The jury found defendant guilty of possessing cocaine base for sale (Health & Saf. Code, § 11351.5—count 1) and resisting an executive officer (Pen. Code, § 69—count 2).
The trial court sentenced defendant to the middle term of four years for count 1 and a consecutive eight months for count 2. The court found that defendant might be addicted or in danger of becoming addicted to narcotics. The court suspended execution of the sentence, and defendant was committed to the California Rehabilitation Center.
III. DISCUSSION
A. Juror Inquiry
Defendant contends that after Juror No. 6 stated that another juror might have been present when the prosecutor and police officer witnesses were talking in the hallway, the trial court committed prejudicial error by failing to conduct a hearing to determine whether good cause existed to discharge a juror.
1. Forfeiture
Defendant concedes his trial counsel never objected to the trial court’s failure to ask Juror No. 6 about the second juror’s identity and failure to question the other juror about what, if anything, they might have overheard about the hallway discussion. (Evid. Code, § 353.) Defendant contends, however, that because the purported error was of constitutional dimension, the issue may be reviewed on appeal even though it was not raised below. (People v. Barber (2002) 102 Cal.App.4th 145, 150 [trial court had the duty to conduct a reasonable inquiry into juror misconduct, and the issue could be raised on appeal even though not raised below].) Because the issue is easily disposed of, we will exercise our discretion to address the issue on the merits to forestall any claim of ineffective assistance of counsel. (See People v. Riel (2000) 22 Cal.4th 1153, 1192.)
2. Standard of Review
“[N]ot every incident involving a juror’s conduct requires or warrants further investigation. ‘The decision whether to investigate the possibility of 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.] . . . [¶] As our cases make clear, a hearing is required only where the court possesses information which, if proven to be true, would constitute “good cause” to doubt a juror’s ability to perform his duties and would justify his removal from the case. [Citation.]’ [Citation.]” (People v. Cleveland (2001) 25 Cal.4th 466, 478.)
3. Analysis
Although a juror’s inadvertent receipt of information that has not been presented in court is not blameworthy, it nonetheless “‘falls within the general category of “juror misconduct.”’” (People v. Danks (2004) 32 Cal.4th 269, 307.) A finding of juror misconduct gives rise to a presumption of prejudice, which is rebutted “if the entire record of the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant.” (In re Hamilton (1999) 20 Cal.4th 273, 296.) Here, the trial court, prosecutor, and defense counsel all agreed there was no reason to excuse Juror No. 6 because what Juror No. 6 had overheard was merely “a snippet of a sentence or two” about something that was going to come into evidence. There is no reason to believe another juror who overheard the same information would have been excused.
The overheard information was established by undisputed evidence at trial. Defendant did not dispute that he possessed the rock cocaine; his defense was that he possessed it for personal use, not for sale. Under the circumstances, therefore, any presumption of prejudice was rebutted—there was no substantial likelihood that any juror was actually biased against defendant.
Finally, the jury was instructed to disregard anything seen our heard when the court was not in session, “even if it was done or said by one of the parties or witnesses” (Judicial Council of California Criminal Jury Instructions, CALCRIM No. 222), and that it must “decide what happened, based only on the evidence that has been presented to you in this courtroom.” We presume the jury followed its instructions. (People v. Yeoman (2003) 31 Cal.4th 93, 139.) We conclude there was no substantial likelihood of bias, and any error was therefore harmless.
B. Sentence for Violation of Health and Safety Code Section 11351.5
The penalty for possessing cocaine base for sale is three, four, or five years in state prison. (Health & Saf. Code, § 11351.5.) The penalty for possessing other forms of cocaine, such as cocaine hydrochloride, for sale is two, three, or four years. (Health & Saf. Code, § 11351.) Defendant contends the harsher sentence for a violation of Health and Safety Code section 11351.5 constitutes a denial of equal protection under the federal and state constitutions (U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7, 15).
1. Forfeiture
As with his claim concerning the duty to inquire of jurors, defendant has forfeited his equal protection challenge by failing to raise it in the trial court. (Evid. Code, § 353; People v. Carpenter (1997) 15 Cal.4th 312, 362 [an equal protection claim must be raised in the trial court or is forfeited], superseded by statute on another ground as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.) Again, however, we will exercise our discretion to address the issue on the merits to forestall any claim of ineffective assistance of counsel. (See People v. Riel, supra, 22 Cal.4th at p. 1192.)
2. Standard of Review
We review the constitutionality of a statute de novo. (People v. Health Laboratories of North America, Inc. (2001) 87 Cal.App.4th 442, 445.) Defendant argues that because the challenged statute affects his fundamental liberty interest, the statute must be reviewed under a strict scrutiny standard, which imposes on the state the burden of establishing that the statute furthers a compelling interest, and the distinctions created by the statute are necessary to further that interest. (People v. Olivas (1976) 17 Cal.3d 236, 243.) However, our Supreme Court has held that the rational basis test, not strict scrutiny, applies to equal protection challenges to disparities in sentencing. (People v. Wilkinson (2004) 33 Cal.4th 821, 838.)
3. Analysis
A state violates equal protection principles if it treats similarly situated classes of persons differently. (People v. Wutzke (2002) 28 Cal.4th 923, 943.) In People v. Ward (2008) 167 Cal.App.4th 252 (Ward), the court rejected a challenge identical to that defendant raises in the instant case. After a thorough review of equal protection principles, legislative history, and persuasive federal authorities, the court held that the greater penalty for possession for sale of cocaine base than for possession for sale of powder cocaine does not violate equal protection because the two substances are not chemically identical, and cocaine base acts more quickly and intensely on the brain than does powder cocaine. (Id. at pp. 257-261.) Ward was soundly reasoned, and we adopt its analysis and conclusion. We therefore reject defendant’s due process and equal protection challenge.
IV. DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., GAUT, J.