Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR052033
Lambden, J.
A jury convicted defendant of three counts of furnishing a minor with a controlled substance in violation of Health and Safety Code section 11380, subdivision (a), and two counts of unlawful sexual intercourse with a minor in violation of Penal Code section 261.5, subdivision (c). Defendant appeals and challenges the lower court’s decision to dismiss a juror after deliberations had started and its refusal to conduct an evidentiary hearing after the jury verdict when the dismissed juror alleged another juror had engaged in misconduct. Additionally, defendant contends that the lower court improperly sentenced him to the upper term for his convictions of furnishing a minor with a controlled substance. He asserts that imposing the upper term violated the dual use doctrine and his due process and Sixth Amendment rights under Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
All unspecified code sections refer to the Penal Code.
We are unpersuaded by defendant’s arguments regarding the lower court’s decision to remove one juror and not to conduct an evidentiary hearing regarding the alleged misconduct of another juror. We also conclude that defendant has forfeited any challenge to his sentence based on the dual use of facts doctrine because he did not object to the aggravated sentence in the lower court. Furthermore, imposing the upper term did not violate his constitutional right to a jury trial because there were three recidivism factors in aggravation.
BACKGROUND
Arrest and Information
An information filed on July 11, 2005, charged defendant with four counts of furnishing a controlled substance (methamphetamine) to a minor (Health & Saf. Code, § 11380, subd. (a)) and three counts of unlawful sexual intercourse with a minor (§ 261.5, subd. (c)). Defendant, who was born on January 31, 1967, was 38 years old at the time of his arrest.
Trial
The case against defendant proceeded to a jury trial. The jury heard evidence that on April 16, 2005, defendant was taken to the hospital after being stabbed in his buttocks. At the hospital, Officer Brian Franco seized defendant’s pants as evidence in the stabbing investigation. Branco found a glass pipe with white residue, which had been wrapped in tissue paper, inside the pocket of defendant’s pants. In another pants pocket, Branco found an eyeglass case containing a second glass pipe, two plastic baggies of marijuana, and nine smaller baggies of methamphetamine, each weighing about three-tenths of a gram.
After defendant was treated for his stab wound, Officer Branco transported him to the police department where Detective David Parris interviewed him. Defendant told the detective that he lived in a motel room with his 16-year-old girlfriend, Kimberly H.
The police interviewed Kimberly. Kimberly told the detective that she was 16 years old, born November 14, 1988, and that she had been using methamphetamine every day. Kimberly also stated that she had sexual relations with defendant. However, at trial, she claimed she had sex with defendant on only one occasion. She also testified that she had told defendant she was 18 years old. She said she had become addicted to methamphetamine long before she met defendant and, while with defendant, she normally took the drug from defendant without asking him. She testified that defendant directly gave her methamphetamine on only one occasion.
On April 20, 2005, Detective Parris again interviewed defendant. Defendant reported that Kimberly had originally told him that she was 18 or 19 years old when he met her; he now was in love with her and wanted to marry her. Defendant admitted that he had sexual intercourse with Kimberly. He also admitted that Kimberly had been using methamphetamine on a daily basis and that she received the drugs from him.
Tary Porter, who was 16 years old, testified that she observed Kimberly smoking a white crystalline substance from a glass pipe while defendant was present.
Defendant presented no defense. On September 7, 2005, defendant moved pursuant to section 1118 to dismiss one of the counts for furnishing a controlled substance to a minor. The trial court granted that motion.
Jury Deliberations and Dismissal of Juror No. 3
The jury adjourned for deliberations late Thursday morning, September 8, 2005. On Monday morning, September 12, 2005, the jury foreperson reported to the court that Juror No. 3 had admitted to having discussed the case with an outside party. The prosecutor, defendant, and defendant’s counsel were all present. The judge asked the foreperson to elaborate and he explained: “In the process of our deliberating about the counts for––I believe it’s two, three, and four, sex with an under-age individual, the––one of the jury members stated that this weekend he had a discussion about a buddy of his. And in the process of relating his thoughts to us abut the charges, he said that his buddy said, ‘Well, remember when you were seeing Becky? You’ve got to think of it that way.’ [¶] And in that case, he stated that the jury member was 22 and the––Becky was 17, which means that––which implied to me that he had, in some ways, revealed some of the details of the case outside and was using external sources to figure out what was goin’ on and reach a conclusion.”
The jury foreperson believed that all of the jurors had heard the comments of Juror No. 3, and one of the jurors had asked the foreperson if he had heard the comments. The foreperson’s impression was that Juror No. 3 “was still wrestling with it and attempting to remain fair and impartial in terms of deliberating the facts of the case before him.” After Juror No. 3 made these comments, the jurors continued to deliberate.
When questioned by defense counsel, the jury foreperson stated that he inferred that Juror No. 3 “had to reveal some of the details of the case [to his friend] for that comment to be brought forth.”
In the presence of both defense counsel and the prosecutor, the trial judge called Juror No. 3 into the courtroom. The court told the juror that “there’s some reference to you[r] hav[ing] commented that you spoke to a friend this weekend about this case or about the circumstances of this case.” The judge then asked Juror No. 3 to comment on this. Juror No. 3 responded: “No. I just said that––that––I told jurors that I––somebody had brought to my attention the fact that I––that I––you know, when I was––way back when, I believe, 22, I took a girl to a prom. And she was five years lesser than me.”
Juror No. 3 stated that the subject came up, not in the context of discussing the pending case, but while discussing a 26-year-old former classmate who recently married a 53-year-old man. According to Juror No. 3, the subject was age difference, not the pending case. He asserted that there was no discussion whatsoever about the pending case.
The judge asked Juror No. 3 why he had not revealed the information about dating a female under the age of 18 years during jury voir dire when he was asked whether he or anyone close to him “had ever had any experience with a similar type event or offense.” Juror No. 3 responded, “Well, I just didn’t really think that might––my experience––I mean, I never––for one, I forgot about it. But I just, you know, until now, I––I mean, I had forgotten that it would even fall into any type of classification that was asked of me at that time.”
Defense counsel asked Juror No. 3 whether he forgot to mention taking the underage girl to the prom because he had not been charged with an offense, and Juror No. 3 responded, “Correct.” Juror No. 3 confirmed that he did not talk about the case with his friend and, if brought into court, his friend would not be able to divulge any information about this case, not even the charges. In response to the prosecutor’s question, Juror No. 3 responded that there was nothing about his experience that would affect his ability to be fair and impartial in the pending case.
The judge asked Juror No. 3 why he brought up his own experience in discussing the facts of the case with the other jurors. Juror No. 3 responded: “Well, just because of the fact that––I mean, it—it didn’t really—I was just really surprised by the fact that, I mean, the same offense was––was happening. I mean, I had actually––had fell underneath the same, I guess, guidelines as being an offense of it myself.” Juror No. 3 confirmed that all of the jurors heard his comments about his personal experience taking an underage female to the prom.
When asked by the prosecutor whether he could separate out his own personal feelings and just follow the law, Juror No. 3 answered: “Yes, ma’am. I––I was just––I was just in shock when––personally, when it had––you know, when it dawned on me that I was in a similar situation. And––and I just––I didn’t know it at the time. I mean, I didn’t remember it until it was enlightened to me. And I just know I was really shocked––[.]”
The judge stated, “under the circumstances, ” he would have to excuse Juror No. 3 because it appeared “that he brought up something personal that is a factor for him in evaluating the facts of this particular case.” The judge continued: “He obviously has discussed this. It’s a––it’s a real factor for him as far as making his determination. It’s a fact that’s outside the––the purview of what either side is able to question about or present other evidence.”
Defense counsel responded that Juror No. 3 “perhaps did not discuss the case outside of the––the jury deliberations. It appears that the issue arose, you know, from some other collateral source.”
The judge decided to excuse Juror No. 3 over defense counsel’s objection.
The Instructions to the Newly Constituted Jury
Following the dismissal of Juror No. 3, the judge admonished the remaining jurors in relevant part: “[I]t’s come to our attention that there was some discussion with an outside party. In other words, one of the jurors potentially spoke to an outside party about other facts that might come before you. In other words, experiences that he had. [¶] What I need you to do is this: I need you to set aside anything that is from outside the jury––or outside the evidence. In other words, personal experiences that might be testified to. And as I indicated to you in jury selection, you know, you’re not––your role is not as advocates in the jury deliberation room and you’re not to bring evidence in. . . .”
After instructing the jury to decide all factual issues based on the evidence presented during the trial and not from any outside source, the court explained: “And I suppose, just to be more direct about it, it came to our attention that potentially one of the other jurors had talked to someone outside of court and maybe not discussed necessarily the facts of this case but own experiences and brought those into the jury deliberation room. [¶] What we have to do is make sure that you make your decision only on the facts presented here in court. [¶] Anyone have a difficulty setting––setting aside anything that you might have heard earlier relative to something happening outside of court and making your decision only on the facts presented here in open court? Any difficulty with that? [¶] Okay. No one’s raising their hand.”
The judge then told the jury that it would have to disregard all past deliberations and began deliberating anew. Since deliberations had to begin again, the court did not answer the question submitted by the jurors prior to the removal of Juror No. 3.
The Deliberations of the Newly Constituted Jury and the Jury Verdicts
At 11:15 a.m., on September 12, 2005, the jury, which now included the alternative juror, adjourned for deliberations. At noon, the matter was continued until 8:30 a.m., September 13, 2005, for continued deliberations.
On September 13, 2005, defense counsel reported that he had discussed with defendant the issues regarding Juror No. 3 and defendant did not want counsel to file a motion for a mistrial. At 10:05 a.m., the foreperson indicated that the jury had reached a verdict. Thus, the jury with the alternate juror deliberated for about two and one-quarter hours. The jury returned verdicts convicting defendant of two counts of unlawful intercourse with a minor, and three counts of furnishing a controlled substance to a minor.
Defendant asserts that the jury deliberated for one and one-half hours, but the clerk’s transcript indicates that the jury deliberated for a little over two hours.
Jury Forms
After the jury was dismissed, the court noted that there had been some problems with the forms and questions relative to the first forms placed before the jury. By agreement of counsel, the original forms were replaced with new forms after Juror No. 3 was replaced. The court had sealed the original verdict forms. The court had now examined these sealed forms, which contained the jurors’ tentative conclusion while Juror No. 3 was on the jury. The court determined: “What I did note from the first set of forms is that the jury had come to some tentative conclusion relative to––I believe it was count two; that that conclusion is consistent with the ultimate verdict. In other words, they had written in guilty as to count two on those first forms that we had.”
Defendant’s Motion for New Trial
On October 27, 2005, defendant moved for a new trial and requested that the court investigate misconduct allegations. Defendant attached to his motion the declaration of the dismissed juror, Juror No. 3. Juror No. 3 stated that, while he was a member of the jury, there were approximately six to seven open votes taken regarding the guilt or innocence of defendant on the various counts. He asserted that he “was the sole juror who was not persuaded that the case had been proven beyond a reasonable doubt as to each count.” He denied discussing the case with any person other than with other jurors during deliberations. He stated that any discussion about his personal experiences “was made as part of a sincere effort to deliberate and was mentioned only to illustrate” his “view of the knowledge and intent instructions given by the court.” He further declared that he believed the report of his alleged misconduct “was motivated by a desire to force” him off the jury as he was “seen as an obstacle to a quick verdict.” He declared that another juror, Juror No. 5, had seen Kimberly in an area where “hookers are” and the juror made this statement during deliberations and with all the other jurors present. He attempted to report to the bailiff this latter statement, but he was told that he had been discharged.
On November 30, 2005, the trial court held a hearing on defendant’s motion for a new trial that was based on the dismissal of Juror No. 3 and the alleged misconduct of Juror No. 5. The court denied the motion and also declined to conduct an inquiry into the misconduct alleged by Juror No. 3.
When explaining the reason for denying the motion for a new trial, the trial court stated that it did not find the denial of Juror No. 3 that he did not discuss the case outside the jury room as “particularly convincing.” The court stated that it did not find that particular misconduct sufficient, in itself, to excuse him. More significantly, the court found that Juror No. 3 “by the nature of the discussion which he candidly admitted that he was considering his own position having committed a crime in assessing the facts of this case. In other words, assessing in essence the morality or propriety of a charge in which one could be charged with having sex with an under-aged female and using his own experience in that respect. [¶] Frankly, that is not anything for the jury’s consideration whatsoever. [¶] What the jury’s duty is is to––duty to accomplish is to assess the facts that are presented and determine whether the facts are true or not true, not the propriety of the law in that respect.”
The court elaborated: “That was the reason in combination with what I found to be somewhat suspect denial of his request or of his explanation as to why he would be discussing that particular aspect with a friend over the weekend. I didn’t find that particularly convincing. But more specifically, the fact he was discussing something which would be inappropriate for him to consider in this particular case, and in combination with the fact that he did not disclose that to the court upon direct inquiry on voir dire––and I suppose people forget those sorts of things. I think excusing [Juror No. 3] was appropriate under those circumstances and with the inquiry that had been received.”
As for the alleged comment of Juror No. 5 regarding Kimberly, the court stated that it did not have any reason to inquire further into the deliberations of the jurors. The court noted that it did not “see anything here that would suggest what is alleged by [Juror No. 3] affected [the jurors’] verdict in any respect.”
Sentence
On December 7, 2005, the trial court sentenced defendant to nine years and eight months imprisonment. He received two concurrent sentences of eight months for each of the unlawful intercourse counts. He received three concurrent sentences to the upper term of nine years for each of the counts of furnishing a controlled substance to a minor.
Defendant filed a timely notice of appeal.
DISCUSSION
I. Dismissal of Juror No. 3
During jury deliberations at the guilt phase of the trial, the trial court discharged Juror No. 3, over defendant’s objection. This dismissal came after the court confirmed with the juror that he had discussed during deliberations his experience of taking a female under the age of 18 years to the prom when he was 22 years old. Juror No. 3 asserted this comment followed a discussion he had with his friend outside deliberations regarding the age difference between a former classmate and the man she recently married. Defendant maintains that the foreperson wanted to have Juror No. 3 removed because he was a holdout and Juror No. 3 was improperly dismissed. Additionally, defendant contends that the lower court employed a defective procedure when investigating and responding to the foreperson’s complaint.
The People contend that the record does not show that Juror No. 3 was a holdout juror. Juror No. 3 stated in his declaration submitted in support of defendant’s motion for a new trial that he “was the sole juror who was not persuaded that the case had been proven beyond a reasonable doubt as to each count.” The trial court noted that it had received a “tentative” verdict, which had been reached prior to the dismissal of Juror No. 3. The “tentative conclusion” indicated that the jurors had found defendant guilty of one count of unlawful sexual intercourse with a minor. The trial court noted that the “tentative” verdict was identical to the verdict the jury ultimately reached after Juror No. 3 was dismissed by the court. However, it may have been that Juror No. 3 was a holdout as to the other counts.
A. Standard of Review
The People maintain that we review the lower court’s decision under the abuse of discretion standard. Defendant argues that abuse of discretion may be proper in cases such as People v. Ramirez (2006) 39 Cal.4th 398, 458, where the juror falls asleep during trial, but he claims that such a review is inappropriate where a hold-out juror is dismissed upon the request of the jury foreman. (See People v. Cleveland (2001) 25 Cal.4th 466, 487-488, Werdegar, J., concurring.)
Section 1089 provides in relevant part: “If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, . . ., the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors.”
Our Supreme Court has consistently held, “ ‘We review for abuse of discretion the trial court’s determination to discharge a juror and order an alternate to serve. [Citation.] If there is any substantial evidence supporting the trial court’s ruling, we will uphold it. [Citation.] . . . [H]owever, . . . a juror’s inability to perform as a juror must “ ‘appear in the record as a demonstrable reality.’ ” ’ ” (People v. Williams (2001) 25 Cal.4th 441, 447-448, fn. omitted.)
Justice Werdegar stressed in her concurrence in People v. Cleveland, supra, 25 Cal.4th at pages 487-488, that we do not simply review the record for abuse of discretion when a juror is substituted after the jury has retired to deliberate. Justice Werdegar explained, “to affirm a trial court’s decision to discharge a sitting juror, ‘[the] juror’s inability to perform as a juror must “appear in the record as a demonstrable reality.” ’ [Citations.] Such language indicates that a stronger evidentiary showing than mere substantial evidence is required to support a trial court’s decision to discharge a sitting juror. In this context, then, a trial court would abuse its discretion if it discharged a sitting juror in the absence of evidence showing to a demonstrable reality that the juror failed or was unable to deliberate.” (Id. at p. 488.)
Accordingly, we review the record to determine whether the evidence shows to a demonstrable reality that Juror No. 3 was unable to perform as a juror.
B. Dismissing Juror No. 3
Defendant maintains that the lower court did not dismiss Juror No. 3 for failing to disclose his dating an underage female during voir dire or because it found he had discussed the case outside of deliberations. Rather, according to defendant, the court’s decision was predicated entirely on the juror’s disclosing his personal experience of taking a minor female to the prom. Even if we presume the lower court’s sole reason for dismissing Juror No. 3 was the juror’s comments during deliberations about taking a woman under the age of 18 years to the prom, we conclude dismissal of this juror was proper.
During voir dire, Juror No. 3 was not directly asked whether he had dated a minor while an adult. The relevant questions posed to the jurors were the following: Was there “[a]nything about the nature of this case or anything else that we touched on that would make it difficult for you to be objective and fair and impartial?” Do you think “that either side [was] at an advantage or disadvantage?” Juror No. 3 answered, “no[, ]” to both of these questions.
Defendant maintains that the trial court improperly dismissed Juror No. 3 simply because he expressed his beliefs about the evidence during deliberations. “It is not improper for a juror, regardless of his or her educational or employment background, to express an opinion on a technical subject, so long as the opinion is based on the evidence at trial. Jurors’ views of the evidence, moreover, are necessarily informed by their life experiences, including their education and professional work.” (In re Malone (1996) 12 Cal.4th 935, 963.) “Moreover, during the give and take of deliberations, it is virtually impossible to divorce completely one’s background from one’s analysis of the evidence. We cannot demand that jurors, especially lay jurors not versed in the subtle distinctions that attorneys draw, never refer to their background during deliberations.” (People v. Steele (2002) 27 Cal.4th 1230, 1266.)
“A juror, however, should not discuss an opinion explicitly based on specialized information obtained from outside sources. Such injection of external information in the form of a juror’s own claim to expertise or specialized knowledge of a matter at issue is misconduct.” (In re Malone, supra, 12 Cal.4th at p. 963.) “A juror may not express opinions based on asserted personal expertise that is different from or contrary to the law as the trial court stated it or to the evidence, but if we allow jurors with specialized knowledge to sit on a jury, and we do, we must allow those jurors to use their experience in evaluating and interpreting that evidence.” (People v. Steele, supra, 27 Cal.4th at p. 1266.)
Defendant argues that the lower court ignored the authority that provides it is proper for jurors to bring their life experiences into their deliberations. In particular, defendant relies on In re Lucas (2004) 33 Cal.4th 682 and Grotemeyer v. Hickman (9th Cir. 2004) 393 F.3d 871. In both Lucas and Grotemeyer, the appellate court was considering whether alleged juror misconduct denied the defendant a fair and impartial trial. In Grotemeyer, the Ninth Circuit held no prejudicial juror misconduct had been established when the jury foreperson, referring to her experience as a medical doctor, opined that defendant’s mental disorders caused him to commit his crime and that he would receive treatment as part of a sentence. (Grotemeyer v. Hickman, supra, at p. 878.) Similarly, in In re Lucas, the court held that a juror had not committed misconduct by sharing his personal experience with drugs during deliberations where the defendant had urged that his drug use had made it impossible for him to form the requisite mental state for the crimes. (In re Lucas, supra, at p. 696.) In both Grotemeyer and Lucas, the courts held there was no juror misconduct because the jurors had expressed their personal assessment of the evidence based on their own special knowledge.
The Ninth Circuit opinion has limited applicability to the present case because, when considering defendant’s assertion of prejudicial juror misconduct, the Grotemeyer court expressly stated that it was not using California law; rather, it was relying solely on federal law. (Grotemeyer, supra, 393 F.3d at p. 877.)
In contrast, here, Juror No. 3 was not bringing any specialized knowledge to bear on the evidence. Rather, Juror No. 3’s statements indicated that he was considering whether a relationship between an underage female and an adult male should be, in fact, against the law. The fact that Juror No. 3 had dated an underage female did not impact his view of the evidence or whether the crime did in fact occur. Defendant argues that dating a minor could have bearing on the question of whether defendant actually had sexual intercourse with Kimberly after learning her true age. This argument has no merit. Nothing in this record indicates Juror No. 3 was using his special experience to weigh the evidence. Rather, the jury foreperson stated that Juror No. 3 raised the issue that he had dated an underage female when Juror No. 3 was “in the process of relating his thought to [the jury] about the charges” of having sex with an underage individual. (Italics added.)
The record shows, to a demonstrable reality, that Juror No. 3 was unable to perform his duty as a juror to be fair and impartial. It is juror misconduct for a juror to express opinions based on asserted personal experience that differs or is contrary to the law as instructed by the court. (See, e.g., People v. Steele, supra, 27 Cal.4th at p. 1266.) Juror No. 3 assured the court that he could be fair and impartial, but where there are factors pointing to a juror’s inability to be impartial, a trial court is not obligated to accept the juror’s claim of impartiality. (People v. Farris (1977) 66 Cal.App.3d 376, 386.) The court noted that Juror No. 3 had not mentioned dating a minor when jurors were asked during voir dire about personal experiences that might affect their jobs as a juror; yet, dating the minor was significant enough for him to bring it up to the jury. The court therefore wanted to know the juror’s reasons for telling the other jurors that he had dated an underage female during the deliberations. Juror No. 3 responded: “Well, I just––I mean, after having talked with my friend, you know, it didn’t dawn on me that I was in the––was in the same situation or would have been than what’s––what’s happening today.” When the court again asked the juror why he brought up his “experience in discussing the facts of the case with the jurors[, ]” Juror No. 3 responded: “Well, just because of the fact that––I mean, it––it didn’t really––I was just really surprised by the fact that, I mean, the same offense was––was happening. I mean, I had actually––had fell underneath the same, I guess, guidelines as being an offense of it myself.”
Thus, the statements of Juror No. 3 to the court make it clear that he did not bring up his personal experiences to assess or consider the evidence. Rather, he was considering his prior behavior in light of the charges and the fact that he could have been charged with the same offense. Accordingly, the record establishes, to a demonstrable reality, that Juror No. 3 was unable to be impartial and to follow the court’s instructions regarding the law.
C. Court’s Inquiry into the Alleged Misconduct of Juror No. 3
Defendant maintains that the “trial court employed a fatally defective procedure in response” to the jury foreperson’s complaint. Defendant contends that the court must focus upon the conduct of the jurors, not on the content of the deliberations, and attorneys for the parties should not be permitted to ask questions. (People v. Cleveland, supra, 25 Cal.4th at pp. 484-485.) Defendant is critical of the court’s allowing counsel to question Juror No. 3 (see, e.g., People v. Barber (2002) 102 Cal.App.4th 145, 151-154), and defendant also maintains that the judge probed Juror No. 3’s thought processes.
The People argue that defendant waived any claim of error based on a defective procedure when conducting the inquiry because defendant never objected below to the court’s procedure when responding to the foreperson’s complaint regarding Juror No. 3. (See People v. Rhoades (2001) 93 Cal.App.4th 1122, 1126 [cannot assert error after jury verdict when acquiesced to procedure used].) We agree that forfeiture does seem to apply in this case because defense counsel did not request that other jurors be questioned, did not object to any of the questions posed to Juror No. 3, and did not object to the court’s permitting counsel to ask questions. Indeed, counsel for defendant asked questions of Juror No. 3. (People v. Holloway (2004) 33 Cal.4th 96, 126 [defendant waived claim of an inadequate examination of a juror because defendant did not “seek a more extensive or broader inquiry of the juror at the time, or in any other way object to the trial court’s course of action].) Having failed to object to the judge’s questions or to the court’s permitting counsel for both parties to ask questions, defense counsel prevented “the trial court from considering any arguments for [not asking certain questions and for not permitting counsel to conduct further examination, and therefore] defendant ‘is not privileged to make the argument now for the first time on appeal.’ ” (Id. at pp. 126-127.)
We do recognize, however, that some courts have concluded there is no forfeiture when challenging the reasonableness of the court’s inquiry into juror misconduct because the trial court has a duty to conduct a reasonable inquiry consistent with a defendant’s right to a fair trial. (People v. Barber, supra, 102 Cal.App.4th at p. 150; but see People v. Pinholster (1992) 1 Cal.4th 865, 928 [“failure to conduct a sufficient inquiry is ordinarily viewed as an abuse of discretion, rather than as constitutional error”].) Since the forfeiture rule is not clear on this issue, we will presume that defendant has preserved for appeal his challenge to the reasonableness of the court’s inquiry into juror misconduct by Juror No. 3.
“[A] trial court’s inquiry into possible grounds for discharge of a deliberating juror should be as limited in scope as possible . . . .” (People v. Cleveland, supra, 25 Cal.4th at p. 485.) The purpose of this rule is to protect “the sanctity of the jury’s deliberations.” (Ibid.) “ ‘[T]o avoid a chilling effect on the jury’s deliberations, a trial court may decline to require jurors to testify when the testimony will relate primarily to the content of the jury deliberations.’ ” (Id. at p. 484, italics omitted.) “ ‘[A]ny investigation must be conducted with care so as to minimize pressure on legitimate minority jurors.’ ” (Id. at p. 478.) Because of the delicate balance between the court’s right to know about misconduct and the privacy of the deliberations, only the court should conduct the inquiry. (Id. at p. 485.) “[P]ermitting the attorneys for the parties to question deliberating jurors is fraught with peril . . . .” (Ibid.)
The appellate court in People v. Barber, supra, 102 Cal.App.4th 145, concluded that the trial court’s inquiry into a juror’s misconduct was fundamentally unfair because the court questioned only the five jurors claiming the juror was not deliberating in good faith. (Id. at p. 151.) The court did not question the six jurors who had proclaimed the juror was deliberating in good faith. (Ibid.) Furthermore, the court’s inquiry was conducted after the jury foreperson informed the trial court that the jury was deadlocked 11 to one, and it became clear during the inquiry that the alleged misconduct involved the holdout juror. (Id. at pp. 147-148.)
In the present case, at the time the trial court made its inquiry and during the inquiry, there was no evidence that Juror No. 3 was a holdout juror. The court also had no evidence that the jury was deadlocked. The court used its discretion to limit its inquiry to the jury foreperson who complained about Juror No. 3 and to Juror No. 3. Defendant complains that the jury foreperson was domineering and was attempting to eliminate a holdout juror, but the court did not rely exclusively on the foreperson’s comments. Rather, the court determined that Juror No. 3 could not be impartial as a result of this juror’s responses to the court’s questioning.
Contrary to the situation in People v. Barber, the present case did not involve a disputed allegation that the juror was not deliberating. Rather, the present case involved an allegation that Juror No. 3 raised an improper issue during deliberations and Juror No. 3 confirmed that he had mentioned dating an underage female. The court decided to remove Juror No. 3 because it concluded that he could not be fair and impartial. Thus, unlike the situation in Barber, there was no dispute about what had occurred during deliberations and therefore there was no need to interview other jurors. Rather, the only issue was whether the court believed that Juror No. 3 could be fair and impartial and follow the law as instructed. The court appropriately explored the experience of Juror No. 3 regarding an underage female and his failure to disclose this situation during voir dire to determine if this experience would affect the juror’s impartiality. The trial court concluded he could not be fair and impartial.
“[A] trial court’s inquiry into possible grounds for discharge of a deliberating juror should be as limited in scope as possible, to avoid intruding unnecessarily upon the sanctity of the jury’s deliberations.” (People v. Cleveland, supra, 25 Cal.4th at p. 485.) In the present case, the court made a reasonable inquiry and there was no need to ask any questions of the other jurors. (See, e.g., People v. Pinholster, supra, 1 Cal.4th at pp. 927-928 [trial court need not question jurors individually to determine whether there has been misconduct]; People v. Keenan (1988) 46 Cal.3d 478, 539 [trial court has “broad discretion as to the mode of investigation of allegations of juror misconduct”].)
Further, the court’s inquiry did not impermissibly delve into the deliberation processes. The court limited its inquiry to whether Juror No. 3 had spoken to his friend about the case, the circumstances regarding that conversation, the reasons for not revealing his prior experience during voir dire, and whether he could be fair and impartial. The court properly focused on the conduct of Juror No. 3 and not on the content of the deliberations or his thought processes. Indeed, had the court improperly delved into the deliberation processes, the court would have learned whether Juror No. 3 was in fact a holdout juror.
Finally, although the Supreme Court has made it clear that the court generally should not allow counsel to question jurors (People v. Cleveland, supra, 25 Cal.4th at p. 485), the questioning of Juror No. 3 by counsel did not result in prejudicial error. Counsel did not delve into the content of the deliberations or the juror’s thought process regarding those deliberations. Indeed, defendant points to no question raised by counsel that was improper.
Accordingly, we conclude that the procedure used by the trial court when inquiring into the alleged misconduct of Juror No. 3 did not result in any prejudicial error.
II. Refusing to Investigate Alleged Misconduct by Juror No. 5
Defendant attached the declaration of Juror No. 3 to his motion for a new trial, and Juror No. 3 asserted that Juror No. 5 reported that he had seen Kimberly “previously on Second Street in Eureka in an area where the ‘hookers are.’ ” He further declared that this statement by Juror No. 5 was made during deliberations with all the other jurors present.
On November 30, 2005, the trial court held a hearing on the motion for a new trial and considered the declaration of Juror No. 3. The court found that it did not have “anything here that would suggest” that it “should inquire further into the deliberations of the jurors.” The court stated that the declaration by Juror No. 3 did not suggest that anything said by Juror No. 5 affected the verdict. It therefore denied the motion for a new trial and declined to hold an evidentiary hearing.
Defendant alleges that the trial court erred in refusing to hold an evidentiary hearing to investigate the allegation that Juror No. 5 engaged in misconduct. Defendant further asserts that “failure to conduct an inquiry into juror misconduct is, in and of itself, grounds for reversal” and cites People v. Castorena (1996) 47 Cal.App.4th 1051, 1066 (Castorena). This latter statement is clearly incorrect, as every case, including Castorena, stresses that the lower court has broad discretion in deciding whether to investigate a claim of juror misconduct as well as in deciding whether juror misconduct exists. (Castorena, supra, at p. 1065 [“ ‘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.] The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial’ ”].) The Castorena court expressly states that the “trial court’s failure to question each juror privately regarding a juror misconduct claim presents an issue of abuse of discretion . . . .” (Ibid.)
The court in Castorena held that the lower court prejudicially abused its discretion when it failed to conduct an adequate inquiry into allegations of juror misconduct where the trial court “did not have the requisite facts upon which to decide whether [the discharged juror] in fact failed to carry out her duty as a juror to deliberate or whether the jury’s inability to reach a verdict was due, instead, simply to [the juror’s] legitimate disagreement with the other jurors.” (Castorena, supra, 47 Cal.App.4th at p. 1066.) Further inquiry was particularly important given that the discharged juror submitted written response to the complaints of the other jurors. (Ibid.)
The trial court’s obligation when presented with an allegation of juror misconduct is well settled. “When allegations of juror misconduct made in a criminal trial raise a presumption of prejudice, the court is not limited, as it would be in a civil case, to consideration of evidence presented by affidavit or declaration to resolve whether a new trial motion should be granted. The court may conduct an evidentiary hearing, at which jurors may testify, to determine the truth of the allegations if the court concludes this is necessary to resolve material, disputed issues of fact.” (People v. Hayes (1999) 21 Cal.4th 1211, 1255, italics added.) “The court’s discretion in deciding whether to discharge a juror encompasses the discretion to decide what specific procedures to employ including whether to conduct a hearing or detailed inquiry.” (People v. Beeler (1995) 9 Cal.4th 953, 989.)
In considering a request for a new trial based on jury misconduct, the trial court determines (1) whether the supporting affidavits are admissible; (2) if admissible, whether the facts establish misconduct; (3) assuming misconduct, whether it was prejudicial. (People v. Dorsey (1995) 34 Cal.App.4th 694, 703.) Normally, hearsay is not sufficient to trigger the court’s duty to make further inquiries into a claim of juror misconduct. (People v. Hayes, supra, 21 Cal.4th at p. 1256 [no abuse of discretion in denying hearing on juror misconduct when alleged misconduct based on unsworn statement of juror and affidavit of defense investigator].)
In the present case, defense counsel presented the sworn declaration of Juror No. 3 that Juror No. 5 engaged in misconduct by obtaining information from an outside source as to a factual matter. (See, e.g., People v. Karis (1988) 46 Cal.3d 612, 642 [juror’s resort to outside sources constitutes misconduct].) The People presented no rebuttal evidence, and defendant asserts that he therefore established prejudice. Defendant has incorrectly stated the test for prejudice. It is the court’s obligation to examine the extrajudicial material and then determine whether this material was “ ‘inherently likely to have influenced the juror.’ ” (People v. Holloway (1990) 50 Cal.3d 1098, 1109, overruled on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
The court assesses “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.” (People v. Nesler (1997) 16 Cal.4th 561, 578.)
In the present case, Juror No. 5 allegedly told the jurors that he saw Kimberly in an area where “hookers” were. Kimberly, a witness for the prosecution, provided testimony that was both beneficial and harmful to the prosecution. She testified that she had sex with defendant on only one occasion, despite having told the detective that it had been more frequent. Additionally, she testified that she had told defendant when she first met him that she was 18 years old and that she had become addicted to methamphetamine long before she met defendant. She also claimed that she normally took the drug from defendant without asking. She conceded that defendant gave her methamphetamine on one occasion.
The record establishes that disparaging comments about Kimberly had no intrinsic bias. Derogatory comments about Kimberly could be seen to help the defense, as Kimberly was the victim and a witness for the prosecution. To the extent Kimberly denied having sex with defendant or receiving drugs directly from defendant on more than one occasion, her testimony helped the defense. Accordingly, derogatory comments about Kimberly did not evince any bias in favor of either the defense or the prosecution.
Additionally, there is nothing in this record that indicates that Juror No. 5 had any bias. Not only is there no evidence that Juror No. 5 was biased, the record establishes that an unbiased jury would have reached the same result. We agree with the trial court that the evidence of defendant’s guilt was “rather overwhelming.” Defendant admitted that he had been having sexual relations with 16-year-old Kimberly. He also admitted that he had been giving Kimberly methamphetamine and that she had been using it on a daily basis. Further, 16-year-old Porter testified that she had seen Kimberly, while defendant was present, take methamphetamine from the nightstand in defendant’s motel room and she saw her smoking it with defendant’s pipe.
Finally, the record establishes that the trial court repeatedly instructed the jurors to base their decision solely on the evidence presented at trial and not on any outside information. All of the jurors indicated that they could and would follow that instruction. Jurors are presumed to follow jury instructions. (See, e.g., People v. Frank (1990) 51 Cal.3d 718, 728.)
Accordingly, we conclude that the alleged misconduct of Juror No. 5 had no prejudicial effect on the verdicts and therefore the lower court did not abuse its discretion in declining to hold an evidentiary hearing regarding his statement about seeing Kimberly in an area with “hookers.”
III. Sentencing Defendant to the Upper Term
A. The Trial Court’s Findings on the Factors in Aggravation and in Mitigation
In the present case, the trial court found the following factors in aggravation: (1) defendant induced others to participate in the commission of a crime or occupied a position of leadership or dominance of other participants in its commission (Cal. Rules of Court, rule 4.421(a)(4)); (2) defendant induced a minor to commit or assist in the commission of the crime (id., rule 4.421(a)(5)); (3) the manner in which the crime was carried out indicated planning, sophistication, or professionalism (id., rule 4.421(a)(8)); (4) defendant’s prior convictions as an adult or sustained petitions in juvenile proceedings were numerous or of increasing seriousness (id., rule 4.421(b)(2)); (5) defendant had served prior prison terms (id., rule 4.421(b)(3)); and (6) defendant’s prior performance on probation or parole was unsatisfactory (id., rule 4.421(b)(5)). In mitigation, the court found the victim a willing participant (id., rule 4.421(a)(2)).
Based on its findings on aggravation and mitigation, the trial court imposed the upper term of nine years for furnishing methamphetamine to a minor. Defendant contends that the trial court improperly imposed the upper term because the court violated the dual use doctrine by considering factors that were elements of defendant’s crime and because it violated his Sixth Amendment and due process rights under Blakely. Accordingly, we consider whether this sentence to the upper term was properly imposed.
B. Dual Use Doctrine
Defendant claims that the trial court violated California Rules of Court, rule 4.420(d), known as the dual use doctrine, by using factors that were elements of the crime of furnishing drugs to a minor (Health & Saf. Code, § 11377, subd. (a)), to justify imposing the upper term for the same crime. (See, e.g., Castorena, supra, 51 Cal.App.4th at p. 562.) The People respond that defendant has forfeited any challenge to his sentence on this basis because he failed to object in the lower court to the court’s imposing the aggravated term.
California Rules of Court, rule 4.420(d) provides, “A fact that is an element of the crime shall not be used to impose a greater term.”
Health and Safety Code section 11380, subdivision (a) provides in relevant part: “Every person 18 years of age or over who violates any provision of this chapter involving controlled substances . . ., by the use of a minor as agent, who solicits, induces, encourages, or intimidates any minor with the intent that the minor shall violate any provision of this article involving those controlled substances or who unlawfully furnishes, offers to furnish, or attempts to furnish those controlled substances to a minor shall be punished by imprisonment in the state prison for a period of three, six, or nine years.”
The Supreme Court in People v. Scott (1994) 9 Cal.4th 331 held “that the waiver doctrine should apply to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.” (Id. at p. 353.) The court concluded “In sum, we hold that complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.” (Id. at p. 356.)
In the instant case, defendant did not interpose an objection at the sentencing hearing or argue that the trial court’s consideration of aggravating circumstances was improper or somehow constituted an impermissible dual use of facts. We therefore conclude that his appellate challenge to the trial court’s sentencing choices and supporting rationale must be deemed waived.
In his reply brief in this court, defendant argues that, if this issue is waived, he claims ineffective assistance of trial counsel. In order to prove ineffective assistance of counsel, defendant must show that his counsel’s performance fell below an objective standard of reasonableness, and that his counsel’s alleged failing resulted in reversible prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 684-686.) Defendant does not address the first prong of the Strickland test; in fact, he does not even mention Strickland. Rather, defendant simply argues that “the dual use error cannot be presumed harmless.” However, under Strickland, it was defendant’s burden to establish prejudice. We conclude that his argument in support of ineffective assistance of counsel is wholly inadequate and we therefore reject this contention.
C. Blakely
Defendant contends that the trial court’s imposition of the upper term for his conviction of furnishing drugs to a minor violated his Sixth Amendment and due process rights. (Blakely, supra, 542 U.S. 296). He argues the trial court violated Blakely and committed constitutional error by imposing an upper term sentence based on aggravating factors that were not supported by jury findings or admitted by him.
The People respond that defendant forfeited his claim to Blakely error because he did not object on this basis in the lower court. Additionally, the People argue that, even if the waiver doctrine does not apply, any error was harmless.
1. The Law
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the Supreme Court held, “Other 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.) For this purpose, the United States Supreme Court stated in Blakeley, the “statutory maximum” is the maximum sentence that a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant. (Blakely, supra, 542 U.S. at pp. 303-304.) Thus, when a sentencing court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Ibid.)
Under California’s Determinate Sentencing Law (DSL), the maximum sentence a judge may impose for a conviction without making any additional findings is the middle term. (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(b).) In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court held that the provision in section 1170, subdivision (b), providing that the middle term be imposed “ ‘unless there are circumstances in aggravation or mitigation of the crime, ’ ” did not trigger the right to jury trial under Apprendi and Blakely.
The Legislature has amended the DSL. (Stats. 2007, ch. 3, § 2, eff. Mar.30, 2007.) All references to the DSL are to that statute as it read prior to this amendment.
Subsequently, the United States Supreme Court in Cunningham v. California (2007) 549 U.S. ____ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) considered whether California’s DSL violates the constitutional principle set forth in Apprendi. The Supreme Court held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence, ” California’s DSL “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Cunningham, supra, 127 S.Ct. at p. 864, overruling Black I, supra, 35 Cal.4th 1238 on this point, vacated in Black v. California (Feb. 20, 2007) ____ U .S. ____ [127 S.Ct. 1210, 167 L.Ed.2d 36].)
After the briefing in this case was completed, our Supreme Court issued its decision in People v. Black (July 19, 2007, S126182) ____ Cal.4th ____ [2007 WL 2050875] (Black II). In Black II, our Supreme Court held that any one factor is sufficient to support the upper term sentence and recidivism is outside the scope of Blakely. (Black II, supra, at p. ____ [2007 WL 2050875, *7].) “Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’ ” (Ibid.) In determining whether there was any Blakely error, the court in Black II stated that the appellate court determines “whether the trial court’s fact finding increased the sentence that otherwise could have been imposed, not whether it raised the sentence above that which otherwise would have been imposed.” (Black II, supra, at p. ____ [2007 WL 2050875, *8].)
2. Waiver
The People contend that defendant forfeited his claim to Blakely error because he did not object on this basis in the lower court. The People point out that the trial court sentenced defendant on December 7, 2005, more than one year after Blakely was issued on June 24, 2004.
At the time defendant was sentenced, Black I, supra, 35 Cal.4th 1238 was the prevailing law in California. As discussed above, our Supreme Court in Black I held Blakely was inapplicable to the selection of the upper term. Consequently, defendant’s objection under Blakely to the upper term would have been futile. (See, e.g., People v. Hill (1998) 17 Cal.4th 800, 820). Black I, however, was reversed on this point in Cunningham (Cunningham, supra, 127 S.Ct. at p. ____), but Cunningham was decided after defendant’s sentencing hearing. Accordingly, defendant’s failure to object did not forfeit the claims he raised under Blakely and Cunningham.
3. Applying Black II
As discussed above, the lower court considered six circumstances in aggravation; three of these factors were not recidivism factors. Defendant asserts that these latter three factors were improperly decided by the trial judge on the preponderance of evidence standard rather than beyond a reasonable doubt standard as required under Apprendi and, therefore, the court imposed an improper sentence.
The People point out that the trial court found the following recidivism factors: defendant’s prior convictions as an adult or defendant’s sustained petitions in juvenile proceedings were numerous or of increasing seriousness; defendant served prior prison terms; and defendant’s prior performance on probation or parole was unsatisfactory. Under Almendarez-Torres v. United States (1998) 523 U.S. 224, 246, a defendant does not have a right to a jury trial for a sentence based upon the fact of a prior conviction. Thus, the People maintain the court properly found these aggravating circumstances based on defendant’s criminal record.
Under our Supreme Court’s holding in Black II, there was no sentencing error. Under the DSL, one aggravating factor is sufficient to impose an upper term sentence. (People v. Osband (1996) 13 Cal.4th 622, 728; Black II, supra, ____ Cal.4th ____ [2007 WL 2050875, *7].) Thus, if the court imposes the aggravating term based on one recidivism factor it is immaterial “how many additional aggravating facts are found by the court, [because] the upper term remains the maximum that may be imposed. Accordingly, judicial fact finding on those additional aggravating circumstances is not unconstitutional.” (Id. at p. ____ [2007 WL 2050875, *9].) Since the court properly found three recidivism factors in aggravation and these findings did not violate Blakely, under the reasoning of Black II, the imposition of the upper term did not infringe upon defendant’s constitutional right to a jury trial.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Haerle, J.