Filed 1/17/14 P. v Ross CA4/2

                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
  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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                                       ordered published for purposes of rule 8.1115.


            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    FOURTH APPELLATE DISTRICT

                                                  DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059487

v.                                                                       (Super.Ct.Nos. FBA900461 &
                                                                                        FBA1000053)
JAMES DARNELL ROSS,
                                                                         OPINION
         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,

Judge. Affirmed.

         Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant

and Appellant.

         No appearance for Plaintiff and Respondent.




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                                               I

                                      INTRODUCTION1

       Defendant James Darnell Ross threatened his former wife and her son and broke the

windows at their residence. A jury convicted defendant of two counts of making criminal

threats (counts 1 and 3), one count of felonious vandalism (count 2), and a bail

enhancement for count 3. (§§ 422, 594, and 12022.1) The court dismissed count 4 for

attempting to dissuade a witness. (§ 136.1, subd. (b)(1).) In a bench trial, the court found

true that defendant had suffered a prior “strike” and a prior felony conviction resulting in

imprisonment. (§§ 667, subds. (d)-(i), and 667.5, subd. (b).) The court sentenced

defendant to a total prison term of 11 years eight months. (E051536, p. 2.)

       In People v. Ross (E051536), an unpublished decision, this court reversed with

directions “for the limited purpose of allowing defendant a reasonable time to investigate

juror misconduct by Juror No. 79 and permitting defendant to file a motion for new trial, if

warranted.” (E051536, p. 16.) On remand, a hearing was held on defendant’s motion for

new trial. The motion was denied. Defendant appeals from the final judgment entered on

October 25, 2012. (§ 1237, subd. (a); Cal. Rules of Court, rule 8.304(a).)

                                               II

                                  STATEMENT OF FACTS

       Three witnesses testified at a hearing on the issue of juror misconduct. Juror No. 79

testified that about three weeks after the conclusion of defendant’s trial she encountered


       1   All statutory references are to the Penal Code unless stated otherwise.

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defendant’s sister, Johnnie Ruby Greene, at a doctor’s office. Juror No. 79 recognized

Greene because their children had attended an eighth grade dance together about 10 years

ago. She did not know Greene’s name. At the time of trial, she had not remembered they

were previously acquainted. Greene hugged her and said, “I know you didn’t want to

convict my brother, but you were pressured to.” Juror No. 79 was startled and responded

simply, “Oh, okay.” Juror No. 79 did not tell Greene she was sorry. Juror No. 79 did not

know defendant before the trial. She did not know if her nephew had ever worked with

defendant. Juror No. 79 stated her deliberations as a juror were unaffected by her slight

acquaintance with Greene.

       Greene is defendant’s sister. She testified somewhat differently than Juror No. 79.

Green knew Juror No. 79 from school. Later their children attended an eighth grade prom

together. That was their only contact until the trial. Greene claimed that, after the verdict

but before defendant was sentenced, she was approached by a female juror at a grocery

store. The woman told Greene “she was sorry.” Greene told her “[i]t’s cool.” Greene is

the office manager for a Barstow dentist. An eye doctor’s office is next door. Greene

again ran into Juror No. 79 as Greene was entering the office. Juror No. 79 repeated she

was “sorry again for what she done to my brother.” On cross-examination, Greene

conceded she had recognized Juror No. 79 but did not think to tell the defense attorney.

       Juanita Brooks knows defendant through his family. She was with Greene when a

woman approached Greene outside the dental office and told her “I am so sorry about what

happened to your brother.” When the woman left, Greene told Brooks the woman was a

juror in defendant’s trial.

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       After hearing oral argument, the trial court found there was no evidence of any bias

on the part of Juror No. 79.

                                              III

                                         ANALYSIS

       Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d

436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case and

a summary of the facts, and requesting this court to conduct an independent review of the

record. We offered defendant an opportunity to file a personal supplemental brief, but he

has not done so. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we have

independently reviewed the record for potential error and find no arguable issues.

       A juror who withholds information during voir dire commits misconduct impinging

on a defendant’s constitutional right to a fair trial. A juror who conceals relevant facts

undermines the jury selection process and commits misconduct. (People v. Duran (1996)

50 Cal.App.4th 103, 111-112.)

       In the present case, the trial court’s finding is supported by substantial evidence that

Juror No. 79 did not recognize defendant’s sister at trial and did not exhibit any bias




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regarding defendant. Juror No. 79 did not withhold any information or conceal any

relevant facts during voir dire. No juror misconduct occurred.

                                            IV

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                 CODRINGTON
                                                                                    J.

We concur:


RAMIREZ
                       P. J.


KING
                          J.




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