P. v. Cooper

Filed 9/25/07 P. v. Cooper CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Siskiyou)

----

A jury found defendant Jason Leroy Cooper guilty of first degree murder with special circumstances and conspiracy to commit murder and also found true enhancements attached to both counts. The court sentenced him to life without the possibility of parole for the murder with special circumstances, a consecutive 25 years to life for the conspiracy, and additional terms for the enhancements.

On appeal, defendant contends the trial court erred in: (1) retaining a juror who was allegedly sleeping during trial; (2) imposing punishment for conspiracy to commit murder in light of the punishment for murder; and (3) imposing the upper term on the enhancement for personal use of a firearm in violation of his right to a jury trial. Agreeing only with defendants second contention, we will modify the sentence and affirm the judgment as modified.

DISCUSSION

I

The Court Did Not Err In Retaining Juror No. 2

Defendant contends the trial court erred in retaining Juror No. 2, who was allegedly sleeping during portions of the trial. Given the substantial evidence supporting the trial courts decision to retain the juror, we disagree.

A

The Trial Courts Investigation Into Juror No. 2

On August 1, 2006, defense counsel asked the court remove Juror No. 2 for cause because [i]t appears that he has missed a good deal of testimony that has been going on here. Defense counsel believed that it looks like from 10:40 a.m. to about 11:20, he appeared to have his eyes closed for a full half hour. I saw very little movement. Again at 2:50 p.m. today for about ten minutes, no movement and he appears asleep. Counsel further believed it appeared that he was not awake during a portion of the proceedings yesterday. The prosecutor stated he had not made any such observations but suggested maybe some inquiry in light of the challenge. The court admit[ted] that Juror No. 2 had been one of [its] main worries. The bailiff said he agreed with the court.

The next day, the court questioned Juror No. 2. The court began by noting that during jury selection, Juror No. 2 indicated that you are involved in fire suppression and are on call, so to speak. The court then stated that I have observed and other people have, too -- that you appear to be sleeping . . . from time to time and may have nodded off and, if that happened, that happened, and its not in any way a reflection on you as a person. But there have been enough observation[s] of you perhaps being sleepy to the point that you might not have been able to pay attention to the testimony . . . . The court asked Juror No. 2 to tell me if, in fact, you have dozed off or gotten sleepy to the point that you havent been able to follow along on the testimony at portions of the trial.

Juror No. 2 replied, I have noticed Ive gone like that so I dont think Ive missed, you know, any -- I mean, I cant honestly say I didnt, you know, but I know Ive noticed Ive gone like that, which the court described as bobbing for apples . . . nodding and then snapping his head back up. Juror No. 2 continued, I dont think I have gone, you know, where Ive missed, you know, but like all I know is I have, you know, noticed Ive done that. I dont think Ive been out, you know. I couldnt honestly say. You know, I dont want to sit here and say something that is not true, you know. But I honestly dont think Ive missed, you know, other than a quick like that where -- .

In response to the prosecutors question as to whether he was listening with his eyes closed, Juror No. 2 remarked, I wouldnt say listen. I may close them for a second but, I mean, I wouldnt keep my eyes closed because then I know I probably would go asleep. I have moved in different positions. If I feel tired or something I will move, you know, different positions.

In response to defense counsels question whether there were times he looked up and thought he missed something, Juror No. 2 responded, I dont think like youve -- the witness would be talking about one thing and Id wake up and its a complete different, you know, Ive never been, you know, no, Ive missed like that.

The court then encourage[d] Juror No. 2 to stand up if [he] need[ed] to but denied defense counsels request to remove him.

Shortly thereafter, the court reporter indicated to [the court and the parties] that there have been multiple occasions during the trial which he, too, was observing Juror Number Two and it appeared to him that he was -- first of all, he had his eyes closed, and based on [the court reporters] experience in many, many jury trials, he evidently had the impression that the juror, in fact, was not just listening with his eyes closed and -- but perhaps was asleep. And he mentioned that at least once he saw the juror jerk his head in a manner . . . earlier described as bobbing for apples that appeared to be bringing him out of a state of inattention.

After these observations were put on the record, defense counsel renewed his challenge to remove Juror No. 2.

The court again denied the challenge with this comment: If the court had the power to simply decide whether or not to replace the juror with an alternate, then without applying any standard other than discretion, Id do so because I feel that the three alternates we have [have] been very alert and attentive. I think counsel would probably share that. [] But the question is whether or not there is cause demonstrated by legal standard. And while I question -- I still question the issue in my own mind, the responses from [Juror No. 2] did appear to be candid. He did appear to be sincere. He didnt appear to be trying to cover himself, so to speak, at least not flagrantly. And applying the legal standard of cause, I dont think it rises to cause.

B

The Courts Ruling Was Not Error

As the California Supreme Court has recently stated, The trial court has the authority to discharge jurors for good cause, including sleeping during trial. [Citation.] When the trial court receives notice that such cause may exist, it has an affirmative obligation to investigate. [Citation.] Both the scope of any investigation and the ultimate decision whether to discharge a given juror are committed to the sound discretion of the trial court. [Citation.] (People v. Bonilla (2007) 41 Cal.4th 313, 350.) We will affirm the trial courts decision whether to discharge a juror for good cause when the decision is supported by any substantial evidence. (People v. Johnson (1993) 6 Cal.4th 1, 21; People v. Burgener (1986) 41 Cal.3d 505, 520, overruled on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 753.)

Here, Juror No. 2s statements provided substantial evidence supporting the trial courts decision not to discharge him, despite statements by others that Juror No. 2 appeared to be sleeping. When the court questioned Juror No. 2 about the courts concern that he might have been sleeping during trial, Juror No. 2 responded that he did not think he had missed the testimony and that he did not think there had been times during the trial where the witness was testifying about one matter and he would wake up and the witness was testifying about another matter. After hearing from Juror No. 2, the court credited the jurors responses, finding them candid and believed that Juror No. 2 was sincere and didnt appear to be trying to cover himself.

Given Juror No. 2s responses and the courts detailed ruling specifically crediting those responses, there was no error, constitutional or otherwise, in the courts decision to retain Juror No. 2.

II

The Punishment For Conspiracy And Its

Attached Enhancements Must Be Stayed

Defendant contends (and the People concede) the trial court erred in imposing punishment for conspiracy to commit murder in light of the punishment for murder. We agree.

Under [Penal Code] section 654, a defendant may not be punished for both the murder and the conspiracy. (People v. Hernandez (2003) 30 Cal.4th 835, 866.) Accordingly, defendants 25-year-to-life punishment for the conspiracy and all three of its attached enhancements must be stayed.^[1]

III

The Upper Term For Personal Use Of A Firearm

Was Authorized In Light Of

Defendants Prior Convictions And Prior Prison Term

Defendant contends the trial courts imposition of the 10-year upper term for personal use of a firearm, which was attached to both the murder and conspiracy counts, violated his Sixth Amendment right to a jury trial. We disagree.

Applying the Sixth and Fourteenth Amendments to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] 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. (Id. at p. 490 [147 L.Ed.2d at p. 455], italics added.) Under this rule, the statutory maximum is the maximum sentence the trial court may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 413].)

In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court rejected a claim of Blakely error, concluding that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law does not implicate a defendants Sixth Amendment right to a jury trial. (Black I, at p. 1244.)

In Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856], however, the United States Supreme Court held that under Blakely and other decisions, Californias determinate sentencing law does violate[] a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments to the extent the law allows a judge to impose an upper term sentence based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (Cunningham, at p. ___ [166 L.Ed.2d at p. 864].)

On remand from the United States Supreme Court for reconsideration in light of Cunningham, the California Supreme Court recently held that imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (People v. Black (2007) 41 Cal.4th 799, 816.)

Here, the trial court imposed the upper term of 10 years for personal use of a firearm based on its agreement with the following aggravating factors listed in the probation report: (1) [t]he crime disclosed a high degree of cruelty or callousness; (2) defendant induced a minor to commit or assist in the commission of the crime; (3) [t]he manner in which the crime was carried out indicated sophistication; (4) defendant has engaged in violent conduct which indicates a serious danger to society; and (5) defendant has served a prior prison term. The court also agreed with the probation reports assessment that there were no mitigating factors. The court emphasized that it particularly [agreed] with the fact that this crime involved a particular callousness on the part of the defendant that does not appear at crimes of similar serious nature.

However, at trial, the parties stipulated that defendant was arrested on December 8th, 2000 . . . and he remained in . . . custody in the Siskiyou County Jail until January 30, 2001, when he was sentenced to prison after pleading guilty [] . . . to accessory after the fact to an assault by means of force likely to produce great bodily injury . . . and . . . to possession for sale of methamphetamine. During trial, defendant admitted that he spent approximately 13 months in prison as a result of pleading guilty to these offenses.

Because these prior convictions and prior prison term (to which defendant stipulated and admitted) made him eligible for the upper term, the trial court did not violate defendants right to a jury trial in imposing the upper term for personal use of a firearm.

DISPOSITION

The sentence is modified to stay defendants 25-year-to-life punishment for the conspiracy (Pen. Code, 182, subd. (a)(1)). As modified, the judgment is affirmed.

The court shall amend the abstract of judgment to reflect the stay on the conspiracy punishment and all three of its attached enhancements and send a certified copy of the amended abstract of judgment to Department of Corrections and Rehabilitation.

ROBIE , J.

We concur:

BLEASE , Acting P.J.

HULL, J.

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^[1] The court stayed only two of the three enhancements attached to the conspiracy count.