Filed 6/30/15 P. v. Miller CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A140999
v.
WALTER KRISTOPHER MILLER,                                          (Mendocino County
                                                                   Super. Ct. No.
         Defendant and Appellant.                                SCUKCRCR137143703)



         Defendant Walter Kristopher Miller was charged with premeditated attempted
murder of Deputy Sheriff Darren Brewster (Pen. Code, §§ 187, subd. (a), 664)1; assault
with a firearm on Brewster (§ 245, subd. (d)(1)); two counts of first degree burglary
(§§ 459, 460, subd. (a)); dissuading a witness (§ 136.1, subdivision (c)(1)); and
possession of a firearm by a felon (§ 29800, subd. (a)). He entered a no contest plea to
one of the burglary counts, and was convicted by a jury of the other offenses. The court
found that Miller had two prior strike convictions (§§ 667, 1170.12), two prior serious
felony convictions (§ 667, subd. (a)), and had served two prior prison terms within the
past five years (§ 667.5, subd. (b)). The court sentenced him to an indeterminate term of
115 years to life in prison, and a consecutive determinate term of 68 years.
         Miller contends that the court erred when it denied his motion to remove a juror
who briefly dozed off twice during his 10-day trial. He also identifies a sentencing error,


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             Subsequent statutory references are to the Penal Code.


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which the People concede. The juror’s retention was not an abuse of discretion, and we
affirm the judgment as modified to correct the sentencing error.
                                    I. BACKGROUND
A. Assault on Deputy Brewster
       Miller admitted that he and Christopher Skaggs burglarized the residence of
William Haga and his wife on February 25, 2013, and stole ammunition and several
weapons, including a 9 millimeter AP-9 handgun. After responding to the Haga burglary
that night, Brewster was on his way to another assignment when he noticed a car merge
dangerously into traffic and tailgate another vehicle. He pulled the car over after
confirming that its registration had expired. When he got to the driver’s window and
asked for the driver’s license and registration, the driver “smirked” and sped off.
Brewster pursued.
       Brewster testified that during the chase, Miller, a passenger in the car, leaned out a
window, turned completely around to face him and fired shots at him from a handgun.
Based on the “multiple muzzle flashes” Brewster saw from the gun, he believed that the
gun was pointed at him when it was fired. He veered to avoid the shots and tried to
continue the chase, but his car slowed and he pulled to a stop. He discovered a bullet
hole in his radiator, and fluid all over the road.
       Miller was arrested two days later in a motel after a three-hour standoff. Police
found an AP-9 handgun and two ammunition clips in the room. Police found one bullet
and three shell casings near where Brewster’s car was shot. Toolmark analysis indicated
the casings were fired from the AP-9 handgun found in the motel room where Miller was
arrested.
       Skaggs’s girlfriend Tracy Cox testified that Skaggs was driving the car, Miller was
in the front passenger seat, and she was in the back seat when Miller fired the shots. She
said that when Brewster approached the car, she told Skaggs to drive off because she was
afraid that Miller was going to kill Brewster. She said Miller had a gun, put his hand on
Skagg’s head, and told him to duck just as Brewster was getting to the driver’s door. She



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said that, during the chase, Miller leaned out the window and fired four shots, with his
body facing Brewster’s car.
       Miller gave a statement to the police five days after his arrest. Miller denied
involvement in the Haga burglary, and said Skaggs did not want to be stopped because
there was stolen property in the car. He said Skaggs handed him the pistol when he first
got into the car, and that Cox encouraged him to shoot it at Brewster. He resisted and
told her he would not “shoot a cop.” He leaned out the window and fired the gun, but did
not aim at Brewster’s car. He fired the gun in the air hoping Brewster would “back off,”
and did not intend to hurt anyone.
       Miller testified at trial that he put his arm out of the window with the gun
perpendicular to the car and not aimed at Brewster, and fired several rounds to deter the
pursuit.
B. The Bennett Burglary and Dissuading a Witness
       Mark Bennett testified that he was asleep with his girlfriend on the morning of
February 21, 2013, when he heard someone call his name. He found Miller, whom he
had not seen in 20 years, in his living room. Miller was standing awkwardly, and went
outside the house as Bennett approached him. Miller asked Bennett if he could help him
get marijuana, and Bennett replied that he no longer used it. They exchanged phone
numbers and Miller left. When Bennett’s girlfriend woke up, they found that her
computer was gone, and items from her purse were missing.
       Bennett called Miller, demanding that he return the missing items. Miller denied
taking anything so Bennett called the police, who tried to contact Miller. Miller called
Bennett, denying that he had stolen anything, and angry that he was getting calls from the
police, and Bennett said, “I have people in the D.A.’s office.” Miller responded, “Well, I
have friends in the street that will end you.” Bennett took this as a death threat because
Miller was “one of the most dangerous human beings” he had “ever spent time with.”




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                                     II. DISCUSSION
A. Retention of the Sleeping Juror
       (1) Record
       During cross-examination of investigating detective Andrew Whiteaker, the
prosecutor asked to approach the bench. After a discussion at the bench, the court called
a recess and noted that a juror “appear[ed] to have dozed off, and it’s the same person
who looked close to having dozed off on a previous day.” The court said it would discuss
the situation with the juror at the end of the day. After the other jurors were excused for
the day, the court told the juror that he appeared to doze off while Whiteaker was
testifying, and asked the juror “whether you believe that you have been able to fully pay
attention to and grasp the evidence as it comes in.” The juror answered, “Yes, I have.”
       After the juror left the courtroom, the court said that the juror “had, in fact, nodded
off” during Whiteaker’s testimony, “and was roused by the juror next to him.” A defense
investigator stated that he had observed the juror sleeping “for five minutes at least,” “if
not longer,” the previous day. The prosecutor said that when the juror “shuts down, he
seems to shut down quickly,” and the court replied, “[t]horoughly.” The prosecutor
stated that when the prior day’s sleeping was brought to the court’s attention, the court
“took action and got him up and going.” The court said that the previous day it “did
essentially take what action you can, which is to make a slightly louder noise and get
everybody to stand up and stretch, who was willing to do it. And that seemed to bring
him back.”
       Defense counsel moved to have the juror discharged; the prosecutor did not join in
the motion. The court said it was “on the fence on this,” and that it would rule on the
motion after the parties rested their cases.
       After the prosecutor’s closing argument, the court noted that “we did have a
discussion about [the sleeping juror] earlier in the proceeding. And I said I would keep
an eye on him through the rest of the proceeding to see whether I thought any action was
warranted. [¶] He told all of us that he felt that he had apprehended all that came in, and I



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saw no reason to question his level of attentiveness after our last discussion. [¶] I don’t
intend to take any action with respect to that juror.”
       (2) Analysis
        “Under section 1089, the court, upon ‘good cause shown,’ may discharge any
juror ‘found to be unable to perform his duty’ at any time during the trial. [Citation.]
The determination of ‘good cause’ rests in the sound discretion of the court [citations],
and the court’s finding thereof will be upheld if substantial evidence supports it
[citation].” (People v. Johnson (1993) 6 Cal.4th 1, 21, disapproved on another ground in
People v. Rogers (2006) 39 Cal.4th 826, 879.) Sleeping during trial can constitute good
cause for a juror’s removal (People v. Bonilla (2007) 41 Cal.4th 313, 350), and “juror
inattentiveness may constitute misconduct” that raises a rebuttable presumption of
prejudice. (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 411, 416–417.) “Some of
the factors to be considered when determining whether the presumption is rebutted are
the strength of the evidence that misconduct occurred, the nature and seriousness of the
misconduct, and the probability that actual prejudice may have ensued.” (Id. at p. 417.)
       “Although implicitly recognizing that juror inattentiveness may constitute
misconduct, courts have exhibited an understandable reluctance to overturn jury verdicts
on the ground of inattentiveness during trial. . . . Perhaps recognizing the soporific effect
of many trials when viewed from a layman’s perspective, these cases uniformly decline
to order a new trial in the absence of convincing proof that the jurors were actually asleep
during material portions of the trial.” (Hasson v. Ford Motor Co., supra, 32 Cal.3d at
p. 411 [italics added].)
       “ ‘Once a trial court is put on notice that good cause to discharge a juror may exist,
it is the court’s duty “to make whatever inquiry is reasonably necessary” to determine
whether the juror should be discharged.’ ” (People v. Bradford (1997) 15 Cal.4th 1229,
1348 (Bradford).) No such inquiry was mandated in Bradford, where the trial court
commented, while ruling on an objection, “ ‘We have a juror that’s asleep.’ Defense
counsel responded: ‘That’s why I’m trying to make this go fast. The juror was asleep all
day yesterday, also.’ The court responded: ‘I know.’ ” (Ibid.) The Bradford court


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wrote: “[T]he record reveal[ed] no more than that the juror had fallen asleep on the day
in question and appears to have been asleep one day earlier; it does not appear that the
juror continued to fall asleep or had been asleep for a longer period of time.” (Id. at
pp. 1348–1349.) “[T]he absence of any reference in the record to the juror’s
inattentiveness over a more substantial period indicates that the trial court did not abuse
its discretion in failing to conduct an inquiry” of the juror. (Id. at p. 1349.)
        If a failure to inquire into a juror’s inattentiveness was not an abuse of discretion
in Bradford, neither was the court’s failure to remove a juror after such an inquiry in this
case.
        Miller’s attempts to distinguish Bradford are unpersuasive. He argues that
“[u]nlike in Bradford, there was ample evidence here that the juror had missed a
substantial portion of the trial.” But the record here established that the juror was asleep
for only a few minutes on two occasions, whereas the opinion in Bradford suggested that
the juror there may have been asleep for substantial portions of an entire day. Miller also
points out that his counsel moved to discharge the juror in this case, while the Bradford
court observed that defense counsel in that case did not allege juror misconduct or request
a hearing on the subject. (Bradford, supra, 15 Cal.4th at p. 1349.) But counsel here did
not make the motion when the juror first fell asleep on the day before he was questioned
by the court, and it does not appear the juror missed any testimony that might arguably
have been material to the case.
        During the court’s discussion with counsel when the juror nodded off the second
time, the prosecutor noted that Whiteaker’s testimony was merely “going back over”
photos of the motel room where Miller was arrested. The prosecutor thought the juror
had not “lost anything really today,” and Miller does not dispute the point. However, he
argues that he might have been prejudiced if the juror missed portions of Tracy Cox’s
testimony the prior day. Cox’s testimony tended to show that he had a premeditated
intent to kill Deputy Brewster, but her credibility was impeached when she admitted,
among other things, that she lied to the police when she was interviewed after her arrest.



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       We can be reasonably certain that the juror fell asleep toward the end of Cox’s
cross-examination following the lunch recess, shortly before or after the court remarked
that the cross-examination had “been lengthy.” During the discussion with counsel, the
court said it had the jurors get up and stretch after learning from Miller’s attorney that the
juror was sleeping. This occurred on page 688 of the reporter’s transcript, which reads:
“[Defense Counsel]: Could we approach briefly, your honor? The Court: Okay.
(Discussion at the Bench) The Court: I’m going to just ask that everybody stretch for a
second. We can all standup for just a second and stretch.” (Paragraph breaks omitted.)
Defense counsel then asked Cox whether she wanted to change any of her testimony, Cox
answered, “no,” and her cross-examination concluded.
       But all of Cox’s potentially significant impeachment occurred during her 70 pages
of morning testimony. Before the lunch break, she admitted being a convicted felon and
initially lying to the police. She said she gave a second statement to the police, eight
months after the incident, that was truthful. She said she was originally told that she
would be charged with attempted murder and conspiracy, but had recently been informed
that she would be charged as an “accessory after the fact.” She said that, when she gave
the second statement, it did not occur to her that she might receive a lesser sentence if she
provided evidence favorable to the prosecution.
       In her afternoon testimony, she explained how she and Skaggs made their way to
Ukiah after leaving the car, and described the circumstances of their arrest the day after
the chase. She repeatedly said she could not remember statements she made in her
second police interview, but recalled saying that Miller’s whole body was pointed in the
direction he fired the shots. She admitted using methamphetamine the day before the
incident, but said she felt no effects from the drug during the chase the following night.
Even if the juror slept through all of the afternoon testimony—which is unlikely given the
time he was observed sleeping—there is no reasonable prospect that he would have
formed a significantly different impression of Cox’s veracity had he stayed awake. If
Miller’s counsel thought otherwise, then presumably he would have moved to discharge



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the juror after Cox’s testimony, and not waited until the juror fell asleep again the next
day to request that he be removed.
       Accordingly, there was no error or prejudice in connection with the juror’s
retention. Miller contends that a sleeping juror during trial constitutes a structural error
that mandates reversal without a showing of prejudice, but concedes that we are bound to
follow our Supreme Court’s decision to the contrary in Hasson v. Ford Motor Co., supra,
32 Cal.3d at pp. 411, 417.
B. Sentencing Issue
       Miller argues, the People concede, and we agree that the indeterminate and
determinate sentences on count 2—assault with a firearm on Brewster—must each be
reduced by one year.
       The court imposed an indeterminate sentence of 40 years to life on count 2 as
follows: the upper term of eight years for the assault; 20 years for the firearm use; ten
years for two prior serious felony enhancements (§ 667, subd. (a)); and two years for two
prison term enhancements (§ 667.5, subd. (b)). One of the prior serious felony
enhancements and one of the prior prison term enhancements were based on the same
prior conviction for dissuading a witness. The court cannot impose both a five-year
enhancement under section 667 and a one-year enhancement under section 667.5 if the
enhancements are based on the same conviction; only the five-year enhancement is
available. (People v. Jones (1993) 5 Cal.4th 1142, 1149–1150.) Therefore, one section
667.5 one-year enhancement must be stricken, and the indeterminate term on count 2
must be reduced to 39 years to life.
       The court imposed a determinate term of 32 years on count 2, consisting of 20
years for the firearm use, ten years for the prior felony convictions, and two years for the
prior prison terms. For the reason explained in the preceding paragraph, one of the prior
prison term enhancements must be stricken, and the determinate term for count 2 must be
reduced to 31 years.




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                                  III. DISPOSITION
       The judgment is modified to strike one section 667.5, subdivision (b) enhancement
from the indeterminate term and the determinate term sentences on count 2. As so
modified, the judgment is affirmed. The trial court is directed to prepare and forward to
the Department of Corrections and Rehabilitation an amended abstract of judgment
reflecting the modifications.




                                                _________________________
                                                Siggins, J.


We concur:


_________________________
Pollak, Acting P.J.


_________________________
Jenkins, J.




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