Filed 5/31/13 P. v. Hightower 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                                          NOT TO BE PUBLISHED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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                    (Sacramento)
                                                            ----



THE PEOPLE,                                                                             C070121

                   Plaintiff and Respondent,                                (Super. Ct. No. 11F03192)

         v.

VALENTINO HIGHTOWER et al.,

                   Defendants and Appellants.




         A jury found codefendants Valentino Hightower and Anthony Edwards guilty of
two counts of robbery, and sustained various firearm enhancements as to both counts.
The trial court sentenced them to state prison.

         Both defendants challenge the extent of the trial court’s inquiry into whether the
misconduct of a dismissed juror potentially affected any of the remaining jurors. We
shall affirm the judgment.




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                 FACTUAL AND PROCEDURAL BACKGROUND

       The nature of defendants’ argument does not implicate the facts underlying the
conviction, nor are we required to determine whether any error was prejudicial. We
therefore omit the circumstances of the crimes.

       On the second day of trial (after completing the selection and swearing of the
jury), the court received a note from the bailiff. An excused juror (who was apparently
part of a group of seven people excused for hardship before voir dire of the panel
commenced) had told the bailiff she heard a woman—who had been attending to the
child of defendant Edwards— instructing the child to smile in the presence of the jurors.
The prosecutor then mentioned that she had seen an excused juror (“7818”) speaking to
the second alternate juror (“0750”). The excused juror asked whether the alternate was
going to tell about something that sounded like “smell.” The alternate then spoke with
seated Juror No. 8 (“7187”), but the prosecutor could not hear the conversation. In light
of this mention of a directive to smile, the prosecutor thought the word she heard might
have been “smile” rather than “smell,” so the prosecutor wanted to question the second
alternate juror and Juror No. 8 to determine if this was the subject of the excused juror’s
conversation. When questioned, neither the alternate juror nor Juror No. 8 was aware of
any information about individuals related to the case doing anything.

       After the lunch break, the court reported that an excused juror (“3778”) had called
to report improper comments that seated Juror No. 1 (“7392”) had made. The excused
juror testified that she had been sitting at a table with Juror No. 1, who said something
not “overtly racist” but which “made light of [defendants’] skin color, that they [a]re
Black,” and that because they were sitting in a courtroom they must be guilty. 1 It
sounded to the excused juror as if Juror No. 1 had prejudged the case. A juror from a


1 The desultory voir dire of Juror No. 1 did not give any indication of bias or
prejudgment.

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different department joined them, at which point Juror No. 1 reiterated that if the
defendants were in court, “there must be some compelling evidence why we are here.”
There was another person seated near them who was working on a laptop, and the
excused juror did not believe this person could have overheard the conversation.

       Before the prosecutor would stipulate to the replacement of Juror No. 1, she
wanted to find out if the juror had similar conversations with any of the other seated
jurors. The prosecutor had seen Juror No. 1 talking frequently with Juror No. 8. When
questioned, Juror No. 1 denied having any discussions about the case with anyone else in
the jury panel, nor did she overhear any. The People then stipulated to replacing Juror
No. 1 with the first alternate (“0878”), and the court dismissed Juror No. 1. (Later in the
trial, Juror No. 8 was dismissed for medical reasons before deliberations and replaced
with the second alternate.)

                                      DISCUSSION

       After discussing at length the unquestioned premise that the trial court had proper
cause to excuse Juror No. 1, defendants both assert the trial court was aware of facts that
suggested a likelihood that Juror No. 1 tainted other members of the jury with improper
biases and therefore breached its duty to investigate sua sponte (or trial counsel were
ineffective for failing to request the court to undertake an investigation). (People v.
Fuiava (2012) 53 Cal.4th 622, 702-703 (Fuiava).) They contend a presumption of
prejudice arises as a result and we must reverse the judgment because the People cannot
rebut it. (People v. Tafoya (2007) 42 Cal.4th 147, 192-193.)

       This argument is based on speculation. The evidence shows only that Juror No. 1
shared her biases with people who were not members of her jury. There is an absence of
any evidence that she spoke on the same topic with Juror No. 8 or anyone else on the jury
in this case. (Fuiava, supra, 53 Cal.4th at p. 702 [no evidence that anyone other than
excused juror had seen purported spectator misconduct, or that it had unsettled them as

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well]; People v. Martinez (2010) 47 Cal.4th 911, 943 [must be evidence of bias; court
will not presume its existence].) The trial court (and trial counsel) could reasonably
conclude that had Juror No. 1 spoken in this fashion to anyone else on the jury, the jurors
or alternates would have reported it as promptly as excused juror 3778 had reported it
(particularly as Juror No. 8 earlier had the opportunity to mention anything of the sort
happening when called into the courtroom), and questioning the jurors about anyone
expressing bias would simply poison an otherwise untainted well.2 As in Fuiava,
defense counsel’s acquiescence in failing to investigate the matter further supports our
conclusion that there was a lack of cause for additional investigation. (Fuiava, supra,
53 Cal.4th at p. 703.) While defendants contrast what they characterize as the greater
lengths on the part of the trial court in investigating the other matter (which in fact
amounted to a single question of the second alternate and Juror No. 8), this is attributable
to the need to determine if the report to the bailiff was connected at all with what the
prosecutor in fact overheard; it was not a matter of pure speculation.

       To the extent any presumption of prejudice arose, it was limited to Juror No. 1
herself, whom the trial court replaced, thus dispelling any prejudice. (Juror No. 8, as
noted, also was not part of the jury’s deliberations.) We therefore do not have any basis
for finding the pattern admonition (that the jury “must not be biased against a defendant
just because they have been [sic] arrested, charged with a crime, or brought to trial”) and
the pattern instruction (on the presumption of innocence) were ineffective.




2 Moreover, for purposes of direct appeal we can posit that defense counsel might not
have wanted to disrupt what they perceived as a favorably composed jury.

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                                   DISPOSITION

     The judgments are affirmed.




                                                 BUTZ   , J.



We concur:



             BLEASE            , Acting P. J.



             MAURO             , J.




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