Filed 9/12/14 P. v. Sanchez CA2/8
                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                DIVISION EIGHT


THE PEOPLE,                                                            B252959

         Plaintiff and Respondent,                                     (Los Angeles County
                                                                       Super. Ct. No. VA126816)
         v.

BENNY ANTHONY SANCHEZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Patrick T. Meyers, Judge. Affirmed.


         Anthony V. Salerno, under appointment by the Court of Appeal, for Defendant
and Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.


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      A jury convicted appellant of assault with a deadly weapon (Pen. Code, § 245,
subd. (a)(1))1 and mayhem (§ 203). Appellant contends the court erred in denying his
motion to excuse a juror and in denying his Romero2 motion to dismiss a prior strike.
We affirm.
                             STATEMENT OF FACTS
1. Prosecution Evidence
      Around midnight on September 30, 2012, Michael C. and Christopher H. were
walking through the Four Winds apartment complex in Whittier to meet with
Michael C.’s friend. They had jumped the wall at the back of the complex. As they
were walking through the complex, Christopher H. heard a whistle behind them. He
turned around and saw appellant. Appellant was holding a bottle in his right hand. He
said to them, “You guys look like little bangers.” Christopher H. replied, “Nah, we
don’t bang, like.” Appellant then asked, “Well, where you from and who are you?”
Christopher H. replied, “I’m Exile,” and said he was from a tagging crew. Appellant
said, “All right.” It was quiet for a moment, and then appellant struck Christopher H.
in the face with the bottle. Christopher H. spun around and was knocked to the
ground. Christopher H. heard appellant say, “Shadow. . . . This is my hood.”
      Christopher H. felt a “huge gap” in his face and he was “bleeding everywhere.”
He was taken to the hospital where approximately 140 stitches were required to close
the wound on his face. Christopher H. suffered nerve damage as a result of the injury.
      Prior to this incident, in November 2011, appellant admitted to a police officer
that he was a member of the Los Nietos gang and his moniker was Shadow. An
officer interviewed appellant on September 30, 2012, at the Four Winds apartment
complex, after the attack on Christopher H. Appellant had a laceration on his palm.



1     Further undesignated statutory references are to the Penal Code.
2     People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).



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He had a tattoo on his neck that said “Nietos.” Christopher H. identified appellant as
his attacker in a six-pack photographic lineup.
2. Defense Evidence
       Appellant testified in his defense. He lived at the Four Winds apartment
complex with his girlfriend and their five-year-old daughter. He was outside smoking
on the night in question when he began talking with a neighbor. He asked the
neighbor for a drink, and the neighbor gave him a glass of soda. He then heard
someone jumping over the wall of the complex. Appellant walked toward the people
who had jumped the wall. One of them, a male, asked appellant “where [he] was
from.” The male said he was from “BYS” and he was “Exile.” The male put his hand
inside his shirt, and appellant thought he might be reaching for a weapon. Appellant
hit the male once with his right hand and ran away.
                             PROCEDURAL HISTORY
       In addition to charging assault with a deadly weapon (count 1) and mayhem
(count 2), the information alleged appellant had inflicted great bodily injury as to
count 1 (§ 12022.7, subd. (a)) and had personally used a deadly and dangerous weapon
as to count 2 (§ 12022, subd. (b)(1)). It further alleged as to both counts that appellant
had suffered a prior strike within the meaning of the “Three Strikes” law (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)), he had suffered a prior serious felony
conviction (§ 667, subd. (a)(1)), and he had served a prison term for a prior conviction
(§ 667.5, subd. (b)). The information also contained gang allegations (§ 186.22, subd.
(b)(1)(C)).
       After finding appellant guilty of both charged offenses, the jury found all
allegations to be true. The court sentenced appellant to a total term of 25 years in state
prison. Appellant timely appealed.
                                     DISCUSSION
1. Motion to Excuse Juror
       Appellant contends the trial court erred in denying his motion to excuse a juror
for bias. We disagree. The record does not support his assertion of bias.


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a. Relevant Proceedings
       Before opening statements, the court was notified that Juror No. 3 and the
prosecutor had encountered one another the night before as they were walking their
dogs. Before the court brought in and questioned Juror No. 3, the prosecutor
explained there were “lots of dog walkers” in her area and there was a particular dog
walker with whom she “always exchange[d] pleasantries,” but she “didn’t really ever
pay that much attention to him.” The night before, she thought she recognized the dog
walker as a juror, but she was unsure. He was about to exchange pleasantries with her
when she asked, “Where were you yesterday?” He replied, “The court. [¶] . . . What
number were you?” The prosecutor then told him they had to report the encounter to
the court. The prosecutor said they had never exchanged names and they had never
talked about their employment. Their exchanges had focused strictly on their dogs,
training, and occasionally Juror No. 3’s garden. She did not recognize the juror the
day before when he was sitting in the jury box.
       Defense counsel moved to excuse Juror No. 3 for “bias towards the district
attorney,” arguing, “She has said that they’ve had pleasant, cheerful hi and byes in the
past with their dogs, and that’s a connection.” The court wanted to question Juror No.
3 about his interaction with the prosecutor. The following colloquy then ensued:
              “[The Court:] It’s my understanding you had an encounter last
       night with someone in the courtroom. Did you recognize that person last
       night as anyone other than a fellow dog walker?
              “Juror Seat No. 3: I didn’t know anything beyond that until that
       individual said where were you or something like that on Wednesday
       and asked who I was because I—even then I didn’t know who that
       person was. [¶] . . . . [¶]
              “The Court: All right. Thursday is when you had the encounter
       with the individual; is that correct?
              “Juror Seat No. 3: Yes, yes.
              “The Court: At any time—well, first of all, was there anything
       else said between you other than what you relate? I mean, can you think
       of anything else?


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        “Juror Seat No. 3: No. We didn’t talk about anything except for
the idea that I walked over. That person basically asked me was—the
person was trying to determine if they knew me from in here. Okay.
And because all I said was, yeah, I had jury duty on Wednesday, right?
And I had it on Tuesday. And that’s where all of a sudden we realized
that, okay, you’re in there and I am in there. I honestly thought she was
in here.
       “The Court: Referring to [the prosecutor]?
         “Juror Seat No. 3: Correct. I thought she was in here because
when I sat over there, just so you know, when I sat over there, I couldn’t
see her because there was a podium that sat right there the whole time.
So I never saw her. And in sitting right here, which is the other place I
sit, if that was right there, I still can’t see her.
       “The Court: Okay. But it wasn’t until that point that you realized
it was someone from the courtroom?
       “Juror Seat No. 3: Yeah, that’s it.
        “The Court: And your initial impression was, was what the role
of that person was?
       “Juror Seat No. 3: I didn’t even understand at that point who she
was. I thought she was a juror. I didn’t realize she was the D.A.
       “The Court: Okay. So this brief exchange took place and you
just parted then at that point?
       “Juror Seat No. 3: Yeah, ten words and on our way because I see
her at—I see her at 30 feet away, right, and you look at the dog. And I
have a puppy. So I am looking at my puppy. I am not really looking at
her. I have to control this dog because when the two dogs come, but
anyway.
       “The Court: So has that been the case—
       “Juror Seat No. 3: Yep.
      “The Court: —When you have been out doing the dog walking
you need to keep good control of your dog?
       “Juror Seat No. 3: Absolutely. And what I do, you just say hi in
passing.
      “The Court: And this is a dog walking area where there are a lot
of people walking dogs or at least more than five or six?


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               “Juror Seat No. 3: Yeah, it’s in town just people walking around
       in the evening and in the mornings. They walk their dogs, and they’re
       going for walks. I probably see, you know—I don’t know. Yeah, I see a
       half-dozen people.
              “The Court: All right. Would the fact that this is a fellow dog
       walker, is someone in a role in this case, would that present difficulty for
       you serving as a juror in this case?
             “Juror Seat No. 3: I am going to be honest. I don’t know. I
       would say no.
              “The Court: Well, let me ask you this, whether or not you would
       have any difficulty finding the defendant not guilty if the People,
       represented by [the prosecutor], failed to prove the guilt of the defendant
       beyond a reasonable doubt.
                 “Juror Seat No. 3: I—You know, all these words always kill me.
               “The Court: Okay. Then we should be clear, and I don’t want
       you to answer something you don’t understand. The question can be
       answered yes or no. [¶] And the question is would you have any
       difficulty if the People, represented by [the prosecutor], failed to prove
       beyond a reasonable doubt that the defendant was guilty of any charge in
       this case? Would you have any difficulty in finding the defendant not
       guilty?
                 “Juror Seat No. 3: No, I would have no difficulty finding him not
       guilty.
              “The Court: All right. All right. Let me ask you to step outside
       for a moment.”
       The court subsequently denied the defense motion to excuse Juror No. 3.
b. Analysis
       “Section 1089 authorizes the trial court to discharge a juror at any time before
or after the final submission of the case to the jury if, upon good cause, the juror is
‘found to be unable to perform his or her duty.’ A trial court ‘has broad discretion to
investigate and remove a juror in the midst of trial where it finds that, for any reason,
the juror is no longer able or unqualified to serve.’ [Citation.] A juror’s inability to
perform ‘“must appear in the record as a ‘demonstrable reality’ and bias may not be
presumed.” [Citations.]’ [Citation.] We review the trial court’s determination for


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abuse of discretion and uphold its decision if it is supported by substantial evidence.”
(People v. Bennett (2009) 45 Cal.4th 577, 621.)
        A criminal defendant has a constitutional right to trial by an impartial jury.
(U.S. Const., 6th Amend.; Cal. Const., art. I, § 16.) An impartial juror has not been
improperly influenced and is “‘“capable and willing to decide the case solely on the
evidence before”’” the juror. (In re Hamilton (1999) 20 Cal.4th 273, 294.) Juror bias
may be actual or implied. Bias may be implied “when the existence of the facts as
ascertained, in judgment of law disqualifies the juror.” (Code Civ. Proc., § 225, subd.
(b)(1)(B).) There are exclusive statutory grounds on which a party may challenge a
juror for implied bias, including “[t]he existence of a state of mind in the juror
evincing enmity against, or bias towards, either party.” (Code Civ. Proc., § 229, subd.
(f).)
        Here, the trial court’s decision that Juror No. 3 was capable of being impartial
was supported by sufficient evidence. The juror’s bias did not appear in the record as
a demonstrable reality. Appellant describes a “community relationship” or “rapport”
between the juror and the prosecutor and asserts they had “more than passing contact.”
But the evidence was that their contacts were, indeed, passing. They did not know
each other’s names or anything about each other’s employment. The prosecutor did
not recognize the juror during voir dire as someone she already knew. It was only
after voir dire that she recognized him on the street as someone who might have been
in the jury panel. Juror No. 3 said he focuses on his dog and controlling the dog when
he is out walking and exchanges pleasantries in passing. They had never done more
than exchange pleasantries and talk about their dogs, or occasionally, the juror’s
garden. They did not discuss any matters about the case because the prosecutor cut off
the conversation when she determined he was, in fact, a juror. When questioned by
the court, the juror said he would not have any difficulty finding appellant “not guilty”
if the prosecutor failed to prove her case. He did not indicate his ability to judge the
evidence would be affected by having encountered the prosecutor walking her dog.
(People v. Bennett, supra, 45 Cal.4th at p. 621 [“The court was in the position to


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observe the juror’s demeanor [citation] and the court was persuaded that the juror
could perform her duties.”].)
       Appellant misplaces reliance on People v. Terry (1994) 30 Cal.App.4th 97
(Terry). That case in inapposite. Terry involved a challenge for cause to a deputy
district attorney in the jury pool. The attorney worked for the same office that was
prosecuting the case. The trial court denied the challenge, finding the prospective
juror’s answers to voir dire demonstrated he could be impartial. (Id. at p. 101.) The
appellate court explained: “From a commonsense approach one would think that [the
prospective juror] might have some reluctance to vote against a case brought by a
fellow attorney from his own office, supervised by his own superior. It would seem
that bias should be implied in this situation.” (Ibid.) It further reasoned that a close
reading of the statute (Code Civ. Proc., § 229, setting forth the exclusive grounds for
challenges of implied bias) confirmed the commonsense approach. One of the
exclusive statutory grounds for implied bias is having had an attorney-client
relationship with one of the parties or one of the attorneys in the case, within one year
previous to the filing of the case. (Code Civ. Proc., § 229, subd. (b); Terry, supra, at
pp. 101-102.) While the juror in Terry had never had an attorney-client relationship
with the prosecutor in the case, the court held “the relationship among attorneys of the
same firm or office is of a fiduciary and confidential nature essentially the same as that
of attorney-client,” and thus attorneys from the same office may also be challenged for
implied bias. (Terry, at p. 102.) Adopting an articulation of the principle from a sister
court, the court also noted the relationship made it “‘almost impossible, however
incorruptible one may be, not to bend before the weight of interest; and the power of
employer over employee is that of him who clothes and feeds over him who is fed and
clothed.’” (Id. at p. 103, quoting Block v. The State (1885) 100 Ind. 357, 363.) The
court observed federal law was in harmony with its conclusion; Justice O’Connor
explained in one concurring opinion that “‘[w]hile each case must turn on its own
facts, there are some extreme situations that would justify a finding of implied bias.
Some examples might include a revelation that the juror is an actual employee of the


                                             8
prosecuting agency . . . .’” (Id. at pp. 102-103, quoting Smith v. Phillips (1982) 455
U.S. 209, 222 (conc. opn. of O’Connor, J.).)
       This case is unlike Terry. There was no showing Juror No. 3 was in a
confidential or fiduciary relationship with the prosecutor. The relationship of fellow
dog walker did not accord the same power and weight of interest an employer would
have over an employee. The facts of this case simply do not compare to Terry. The
trial court did not err in denying the motion to excuse the juror.
2. Romero Motion
       Appellant made an oral Romero motion to dismiss the prior strike finding
against him, and the court denied the motion. He contends the court abused its
discretion. We disagree.
       Under section 1385, subdivision (a), a judge may, in furtherance of justice,
order an action to be dismissed. Pursuant to the statute, a trial court may also vacate a
finding under the Three Strikes law that a defendant has previously been convicted of
a serious and/or violent felony. (Romero, supra, 13 Cal.4th at p. 504.) We review a
trial court’s failure to dismiss or strike a prior conviction allegation or finding under
the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th
367, 374.) The defendant has the burden of showing the sentencing decision was so
irrational or arbitrary that no reasonable person could agree with it. (Id. at pp. 376-
377.) In the absence of such a showing, we presume the trial court acted to achieve
legitimate sentencing objectives and will not set aside its discretionary determination
on review. (Ibid.) When the record demonstrates the trial court considered all the
relevant factors and reached an impartial decision, we should affirm the trial court’s
ruling, even if we might have reached a different decision in the first instance. (Id. at
p. 378.)
       When entertaining a Romero motion, the court should balance the defendant’s
constitutional rights but also society’s legitimate interest in the fair prosecution of
properly charged crimes. (Romero, supra, 13 Cal.4th at p. 530.) The court should
consider whether the nature and circumstances of the defendant’s present felonies and


                                             9
prior serious and/or violent felony convictions, and the particulars of the defendant’s
background, character, and prospects, place the defendant outside the spirit of the
Three Strikes law, in whole or in part. (People v. Williams (1998) 17 Cal.4th 148,
161.)
        In this case, appellant has not shown the court’s sentencing decision was
irrational or arbitrary in light of the relevant factors. The current offense was violent
and involved great bodily injury to the victim, who was 17 years old at the time of the
offense. Appellant was 28 years old at the time of this case and had accumulated three
felony convictions in three separate cases—one for second degree robbery in 2004,
one for vehicle theft in 2005, and one for evading a police officer in 2010. He also had
four misdemeanor convictions from 2004 to 2010 for driving with a suspended license
and being under the influence of a controlled substance. He was on probation at the
time he committed the current offense. (People v. Strong (2001) 87 Cal.App.4th 328,
338-340 [proper to consider the defendant’s past criminal record; the defendant’s
criminal career need not “consist entirely or principally of violent or serious felonies to
bring a defendant within the spirit of the Three Strikes law”]; People v. McGlothin
(1998) 67 Cal.App.4th 468, 475 [considering misdemeanor and probation or parole
violations as well as felonies].) Appellant argues his prior strike—the 2004 second
degree robbery conviction—was remote in time. But the length of time between the
prior strike and the current offense is far less significant when appellant did not refrain
from criminal activity during that time. (People v. Williams, supra, 17 Cal.4th at
p. 163.) Appellant also argues his prospects were good in that he had a stable living
situation with his family for two years, was employed at greater than minimum wage
as a janitor, and did not drink or use drugs. This information was brought to the
court’s attention at the sentencing hearing and in the probation report, and we presume
the court weighed these factors in the absence of an affirmative record to the contrary.
(People v. Myers (1999) 69 Cal.App.4th 305, 310.) Given appellant’s prior record and
the circumstances of the present offense, however, we cannot say the court’s ultimate



                                            10
sentencing decision was so irrational or arbitrary that no reasonable person could agree
with it. Accordingly, the court did not err.
                                    DISPOSITION
       The judgment is affirmed.




                                                FLIER, J.
WE CONCUR:




       BIGELOW, P. J.




       GRIMES, J.




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