P. v. Garcia

1
Filed 1/5/07 P. v. Garcia 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NOT TO BE PUBLISHED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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ANDREW PATRICK GARCIA,
Defendant and Appellant.
C049205
(Super. Ct. No.
03F10094)
A jury convicted defendant Andrew Patrick Garcia of assault
with a firearm with an enhancement for personal use of the
firearm, vehicle theft, evading a police officer, felon in
possession of a firearm, carrying a loaded firearm in a public
place, and resisting a peace officer. In a bifurcated
proceeding, the trial court found defendant had suffered a prior
strike conviction and had served three prior prison terms.
Sentenced to 23 years eight months in state prison, defendant
appeals. He contends: (1) one of the pretrial photographic
lineups and the victim’s in-court identification should have

-- 1 of 26 --

2
been excluded, (2) the trial court erred in denying his motion
for a new trial based on juror misconduct, and (3) his sentence
violated his right to a jury trial as discussed in Blakely v.
Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely).
Finding no prejudicial error, we affirm.
FACTS
On November 15, 2003, the victim, David Dawson, had three
or four beers at a friend’s birthday celebration, then left his
friend’s house on foot, intending to call a cab. According to
Dawson, while he was walking, a car pulled up next to him and he
was offered a ride home from the car’s occupants, a man and a
woman whom Dawson referred to as “Toby” and “Sherlese or
Sherlene.” When they arrived at Dawson’s residence, he invited
the couple up to his apartment. Toby left the apartment at 2:00
or 3:00 a.m., at which point Dawson went to sleep. In the
morning, the woman wrote a note for Toby in case he returned for
her and left in a cab. Soon after the woman left, Dawson
noticed his ATM card was missing, and he subsequently learned
there were fraudulent transactions on the account.
The following day in the late afternoon, Dawson was in his
apartment watching football when he heard a knock at his door.
He answered the door and saw a man pointing a handgun at him.
According to Dawson, the man said, “You know who I am, mother
F’er?” Dawson had never seen the man before. The man was
Hispanic. He was wearing a stocking hat and a long-sleeved
shirt, and he had a tattoo on his neck. The man stepped into
the apartment, closed and locked the door, and pointed the gun

-- 2 of 26 --

3
at Dawson’s face. The man accused Dawson of holding his
“sister,” “Sherlese or Sherlene or Sharlene,” hostage. When
Dawson said he did not know what the man was referring to, the
man slapped him forcefully, knocking him toward the ground. The
man then pointed the gun at Dawson and told him to get down on
the ground. Dawson, who thought the man was going to kill him,
ran to the window, broke it open and yelled for help. The man
then ran out of the apartment.
From his balcony, Dawson saw the man take off his shirt as
he walked briskly down the street. Dawson went downstairs to
follow the man. Once downstairs, Dawson noticed tattoos on the
man’s shoulders and back. Dawson had noticed tattoos on the
man’s neck when he was in Dawson’s apartment and still had his
shirt on. Dawson yelled at the man and ran after him. He was
certain the man he was following was the person who had been in
his apartment. When Dawson arrived back at his apartment, he
saw the man driving away in a teal blue hatchback. After the
car drove away, Dawson called 911.
Within 30 seconds to a minute of receiving the description
of the hatchback, Sacramento Police Officer Mathew Moore saw a
car matching the description. He ran the license plate and
discovered the car was stolen. Officer Moore followed the
hatchback and waited for additional officers to arrive. Other
officers joined the pursuit with lights and sirens activated, at
which point the hatchback accelerated through an intersection
against a red light. The hatchback traveled at a high rate of

-- 3 of 26 --

4
speed through a residential area, eventually coming to a stop in
an alleyway.
Defendant got out of the hatchback and ran. Still inside
the hatchback were two females, later identified as Sherish
Balderaz and Diana Brownell. The women provided Officer Moore
with the address where defendant was going. Officer Moore
determined defendant was hiding in a tree house at the address
he had been provided. Law enforcement personnel utilized
various means to try to get defendant to come down from the tree
house. After approximately 17 hours, defendant came down and
was taken into custody.
A loaded .22 caliber firearm was discovered during a search
of the hatchback. At trial, Dawson testified he was familiar
with guns because his father is a “sharp shooter” and he had
“been around guns [his] whole life.” Dawson testified that his
assailant used a chrome plated, small, snub nosed .22 caliber
firearm, with two barrels “over and under.” When shown the gun
found in the hatchback, Dawson said it exactly matched the gun
his assailant had used.
At trial, Balderaz acknowledged that her boyfriend at the
time of the incident was Tyler Sprague, who went by the name
Toby, and that they had since married and had a child. However,
Balderaz denied giving Dawson a ride home a couple days before
the incident or ever being at his residence. Balderaz also
denied leaving a note at Dawson’s apartment for Toby and, when
shown the note, she continued to claim she had not written it.
Balderaz also testified that Toby did not have tattoos.

-- 4 of 26 --

5
According to Balderaz, on the day of the incident,
defendant picked up Diana Brownell and her at a Starbucks.
Balderaz testified that defendant drove to an apartment building
and said he had to talk to someone. Defendant got out of the
car and went upstairs. Balderaz heard yelling and glass
breaking. Defendant returned and told Balderaz to start the
car, which she was unable to do because “[t]he only way to start
[it] was with a screwdriver.” Meanwhile, defendant “sprint[ed]”
around the corner. Defendant returned to the car after
approximately a minute, at which time he handed Brownell a gun
and told her “to do something with it.” Defendant started the
car, and they drove off.
Sheila Stellini testified that on the day of the incident
she was at Jorge Torres’s house, as were defendant, Balderaz and
Toby. According to Stellini, Toby asked defendant for a ride to
confront a man about “putting his hands” on Balderaz in a sexual
manner. Stellini testified that defendant borrowed Torres’s
car, a bluish-green hatchback, and he left with Balderaz and
Toby.
A cab driver testified that, on the morning of November 15,
he picked up a woman in her twenties on Dawson’s block who
looked similar in appearance to a photograph he was shown of
Balderaz. The woman told him that she and her boyfriend had
stayed with a man upstairs, her boyfriend had left in the middle
of the night and the man had tried to molest her.
A forensic documents examiner testified that, based on a
comparison of a known sample of Balderaz’s handwriting with the

-- 5 of 26 --

6
note left at Dawson’s apartment, it was his opinion that both
items were written by the same person.
DISCUSSION
I
Photographic and In-Court Identification
Defendant contends the trial court erred by admitting
evidence of the second of two photographic lineups and the
victim’s in-court identification. Even assuming the second
photographic lineup was impermissibly suggestive and that the
in-court identification was tainted by the suggestive lineup, we
conclude defendant suffered no prejudice.
A. Background
The day after the incident, an officer returned to Dawson’s
residence with a photographic lineup that included a picture of
defendant. Dawson identified two photographs -- a photograph of
defendant and one of another man. Dawson was 40 percent sure
the man who assaulted him was defendant and 60 percent sure it
was the other man whose photograph he picked out.
Several months later, Dawson was shown another photographic
lineup, which included a photograph of defendant. Dawson picked
out defendant’s photograph. Dawson later told a defense
investigator that he chose defendant’s photograph because he
recognized him from the prior lineup.
Before trial, defendant moved to exclude the second
photographic lineup and any in-court identification by Dawson.
Before ruling on the admissibility of the second lineup, the
court stated it would allow Dawson to make an in-court

-- 6 of 26 --

7
identification. The court then asked defense counsel if he
still wanted the second lineup excluded or if he wanted it
admitted in order to cross-examine Dawson about his in-court
identification. Defense counsel responded that, based on the
court’s rulings, he did not want the second lineup excluded.
At trial, Dawson admitted he was able to identify defendant
in the second photographic lineup because he recognized him from
the first lineup. Dawson testified that defendant looked
similar to his assailant, but he was not certain it was the same
person due to “the darkness” and the fact that his assailant was
wearing a beanie. He explained that, during the incident, his
primary focus had been on the gun. Dawson was given the
opportunity to view defendant’s back and neck in court. He
testified that defendant’s tattoos were consistent with those he
saw on his assailant, but he was not certain they were the same.
B. Prejudice Analysis
A suggestive photographic lineup violates a defendant’s due
process rights when it is “‘so impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable
misidentification.’” (People v. Blair (1979) 25 Cal.3d 640,
659, quoting Simmons v. United States (1968) 390 U.S. 377, 384
[19 L.Ed.2d 1247, 1253].) “‘The issue of constitutional
reliability depends on (1) whether the identification procedure
was unduly suggestive and unnecessary [citation]; and if so,
(2) whether the identification itself was nevertheless reliable
under the totality of the circumstances . . . .’” (People v.
Ochoa (1998) 19 Cal.4th 353, 412 (Ochoa).)

-- 7 of 26 --

8
Defendant is entitled to reversal based on the admission of
the unduly suggestive identifications unless the error was
harmless beyond a reasonable doubt. (Chapman v. California
(1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710]; People v. Caruso
(1968) 68 Cal.2d at 183, 184.) We conclude that the weakness of
the identification evidence rendered the admission of this
evidence harmless beyond a reasonable doubt. Therefore, we need
not determine whether the evidence was erroneously admitted.
Dawson admitted, at trial, that his identification of
defendant in the second photographic lineup was a direct result
of seeing defendant’s picture in the first lineup. Thus, any
value this identification may have had was lost. Furthermore,
in court, Dawson was not able to positively identify defendant
as the man who attacked him but could only say that defendant
“looked like [him].” Both Dawson’s identification of defendant
in the second lineup and his in-court identification were weak.
In argument to the jury, the prosecutor acknowledged that
Dawson had not been able to identify defendant as his assailant
with certainty and argued that the jury should convict defendant
despite the weak identification. The prosecutor focused on the
circumstances surrounding the offense, rather than Dawson’s
identifications of defendant, to show that defendant was the
assailant.
Based on the weakness of the erroneously admitted
identification evidence and the fact that the prosecutor, in
effect, urged the jury to convict defendant despite the

-- 8 of 26 --

9
identifications, we conclude that the admission of the evidence
in question was harmless beyond a reasonable doubt.
II
New Trial Motion
Defendant asserts the trial court’s denial of his new trial
motion, based on juror misconduct, was error. Even assuming
misconduct, however, defendant was not prejudiced. Accordingly,
we reject this assertion.
A. Background
Booking photos of defendant and Toby were introduced into
evidence during trial. In the photograph of defendant, he was
not wearing a shirt, while in Toby’s photograph, he was wearing
a T-shirt. Defendant has a darker complexion than Toby, who has
red hair. The defense presented an expert on eyewitness memory,
who testified regarding several factors that might have
contributed to a misidentification of defendant. In closing
argument, defendant’s trial attorney argued the evidence
supported the inference that Toby was Dawson’s assailant.
After trial, defendant filed a motion for new trial. Two
juror declarations accompanied defendant’s new trial motion.
The first declaration, from an individual identified as juror
number three, included the following statements:
“When the jury first started deliberations, I had some
doubts as to whether [defendant] was guilty;
“I needed to fill in some gaps on the case;
“My main doubt was to whether Mr. Toby [sic] or [defendant]
did the assault;

-- 9 of 26 --

10
“On the first day of deliberations, we were trying to find
out if tattoos are shown on the mug shots;
“That night, I got on the Sacramento Police Department’s
website to see if it said whether or not photos of tattoos are
included on the mug shots;
“I wasn’t able to find anything about it on the website;
“I mentioned to the jury that I tried to find something out
about the mug shots but I couldn’t;
“I did not mention to the jury that I looked on the Sac PD
website, I just said I tried but I couldn’t find out whether or
not tattoos are shown on mug shots;
“Someone said its [sic] a way for the police to identify
people, so photos of tattoos would be included;
“We kind of figured that tattoos would be included on the
mug shots.” (Paragraph numbering omitted.)
Juror number four also signed a declaration, which
defendant filed in support of the motion for new trial. It
included the following statements:
“During the trial, the defense attorney brought up that it
could have been Mr. Toby [sic] who did the assault;
“One of the jurors, a 30 year old male -- I forget his
name, was hung up on this point.
“The testimony was that the man who did the assault took
off his shirt when he ran away, showing a lot of tattoos on his
body;
“We, the jurors, wanted to know if Mr. Toby [sic] had
tattoos;

-- 10 of 26 --

11
“There were two days of deliberations;
“On the morning of the second day, the young male juror
said he found out that the booking photos showed any and all
tattoos;
“This young man said that if the subject had any tattoos,
there would be photographs of the tattoos on the booking photos;
“The young man said that if the subject had no tattoos,
there would be no additional photographs on booking photos;
“The young man did not say how he knew this;
“We looked at the booking photos of [defendant] and saw the
photos of his tattoos;
“We looked at the booking photos of Mr. Toby [sic], and
there was nothing on the booking photos indicating that he had
tattoos;
“I believe this was an important point for that young man,
and maybe a couple other jurors who were on the fence;
“Once we concluded that tattoos were included in the
booking photos, and that Mr. Toby [sic] didn’t have tattoos,
everybody clearly found [defendant] guilty.” (Paragraph
numbering omitted.)
The prosecution filed a response to defendant’s motion,
arguing in part that, under Evidence Code section 1150,
subdivision (a), the juror declarations were inadmissible
because they contained statements that reflected the jurors’
subjective thought processes.
Without addressing the admissibility of the declarations,
the trial court ruled that juror number three committed only

-- 11 of 26 --

12
attempted misconduct because, according to that juror, he was
unable to obtain any outside information. The court found that
defendant was not prejudiced by the attempted misconduct
“because no information was gained and no information was used
during deliberations concerning th[e] attempt to gain that
information.” The court also found the evidence “overwhelming”
that defendant committed the offense. Accordingly, the court
denied defendant’s motion for a new trial.
B. Juror Misconduct
A three-part inquiry is required when ruling on a motion
for new trial based on juror misconduct: “‘First, [the trial
court] must determine whether the affidavits supporting the
motion are admissible. [Citation.] If the evidence is
admissible, the trial court must determine whether the facts
establish misconduct. [Citation.] Lastly, assuming misconduct,
the trial court must determine whether the misconduct was
prejudicial.’” (People v. Trujillo Garcia (2001) 89 Cal.App.4th
1321, 1338.)
1. Admissibility of Juror Declarations
Evidence Code section 1150, subdivision (a), provides:
“Upon an inquiry as to the validity of a verdict, any otherwise
admissible evidence may be received as to statements made, or
conduct, conditions, or events occurring, either within or
without the jury room, of such a character as is likely to have
influenced the verdict improperly. No evidence is admissible to
show the effect of such statement, conduct, condition, or event
upon a juror either in influencing him to assent to or dissent

-- 12 of 26 --

13
from the verdict or concerning the mental processes by which it
was determined.”
Here, the trial court did not rule on the prosecution’s
objection to the admissibility of the juror declarations under
Evidence Code section 1150. However, we must conduct our
analysis based only on portions of the declarations concerning
the jurors’ conduct and any statements that, in their making,
constituted misconduct. (See People v. Lewis (2001) 26 Cal.4th
334, 388-389.) Therefore, any statement evincing the jurors’
mental processes must be disregarded. (People v. Lewis, supra,
26 Cal.4th at p. 389.) This includes statements concerning
doubts as to whether defendant or Toby committed the assault,
the jurors’ belief in the importance of the information obtained
outside of court, the jurors’ belief concerning the importance
of the tattoo evidence, what the jurors learned from looking at
the booking photographs, whether jurors were “on the fence”
concerning defendant’s guilt, and what effect the information
had on the jurors’ votes. “[U]nder both the common law and
Evidence Code section 1150, the jurors’ motives, beliefs,
misunderstandings, intentions, and the like are immaterial.”
(People v. Hill (1992) 3 Cal.App.4th 16, 30, overruled on other
grounds in People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5
(Nesler).)
The Attorney General argues that the declarations were
insufficient to support defendant’s motion because they were
signed “to the best of my knowledge.” The cases relied on by
the Attorney General to support this argument focus on the

-- 13 of 26 --

14
requirement that declarations be based on personal knowledge,
while the phrase “to the best of my knowledge” suggests
something short of this. (See Bowden v. Robinson (1977) 67
Cal.App.3d 705, 719-720; Ahrens v. Superior Court (1988) 197
Cal.App.3d 1134, 1151, fn. 13.) However, the content of the
declarations, here, reflect that they were based on each
declarant’s personal knowledge. In any event, this argument was
not raised in the trial court and has been forfeited for
purposes of appellate review. (See Doers v. Golden Gate Bridge
Etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1; People v. Rudd
(1998) 63 Cal.App.4th 620, 628-629.)
2. Juror Misconduct
Juror misconduct occurs when the jury receives evidence
from a source other than the courtroom. (Pen. Code, § 1181,
subd. 2.) “When a trial court is aware of possible juror
misconduct, the court ‘must “make whatever inquiry is reasonably
necessary”’ to resolve the matter.” (People v. Hayes (1999) 21
Cal.4th 1211, 1255, italics in original.)
Here, a juror attempted, at least, to obtain information
relevant to the proceedings from a source outside of the court.
This conduct constituted misconduct. The jury was instructed
not to use evidence from any source other than what was obtained
in court. The two juror declarations appear to conflict. Juror
number three said that, although he tried to get information
from the Sacramento Police Department website, he was
unsuccessful and did not tell the rest of the jury that he had
obtained information from outside the court that a person’s

-- 14 of 26 --

15
tattoos are shown in the booking photographs. Juror number
four, however, said that a male juror, apparently juror number
three, told the other jurors he “found out” that tattoos are
shown in booking photographs. It is unnecessary to resolve this
minor factual conflict because, even if we assume juror number
three obtained information from a source outside of the court
and told the other jurors that booking photographs show a
person’s tattoos, the misconduct was not prejudicial.
3. Prejudice Analysis
Whether prejudice resulted from juror misconduct is subject
to our independent review. (Nesler, supra, 16 Cal.4th at p.
582, fn. 5.) Therefore, we may consider prejudice even though
the trial court did not consider it.
When juror misconduct occurs, reversal is warranted only if
there is a substantial likelihood that one or more jurors was
influenced by exposure to the material obtained from outside the
court. (In re Carpenter (1995) 9 Cal.4th 634, 650-651
(Carpenter).) Prejudice can be established if, objectively, the
extraneous material was “inherently and substantially likely to
have influenced the juror.” (Carpenter, 9 Cal.4th at p. 653.)
But it can also be established by examining “the nature of the
misconduct and the surrounding circumstances to determine
whether it is substantially likely the juror was actually biased
against the defendant.” (Ibid.) “[I]f it appears substantially
likely that a juror is actually biased, we must set aside the
verdict, no matter how convinced we might be that an unbiased
jury would have reached the same verdict.” (Id. at p. 654.)

-- 15 of 26 --

16
And a conviction must be overturned if even one juror was biased
by outside information. (Id. at p. 652.)
“[T]he test for determining whether juror misconduct likely
resulted in actual bias is ‘different from, and indeed less
tolerant than,’ normal harmless error analysis, for if it
appears substantially likely that a juror is actually biased, we
must set aside the verdict, no matter how convinced we might be
that an unbiased jury would have reached the same verdict.
[Citation.] A biased adjudicator is one of the few ‘structural
defects in the constitution of the trial mechanism, which defy
analysis by “harmless-error” standards.’ [Citations.] Thus,
even if the extraneous information was not so prejudicial, in
and of itself, as to cause ‘inherent’ bias under the first test,
the totality of the circumstances surrounding the misconduct
must still be examined to determine objectively whether a
substantial likelihood of actual bias nonetheless arose.”
(Carpenter, supra, 9 Cal.4th at p. 654.)
The entire record, including the trial record, must be
examined in making this determination. Factors to consider in
making this determination include “the nature of the juror’s
conduct, the circumstances under which the information was
obtained, the instructions the jury received, the nature of the
evidence and issues at trial, and the strength of the evidence
against the defendant.” (Carpenter, supra, 9 Cal.4th at p.
654.) “[T]he exact nature of the misconduct is highly relevant
to the initial determination of bias.” (Id. at p. 657.)

-- 16 of 26 --

17
Dawson testified that the person who assaulted him had
tattoos. First, he noticed a tattoo on the assailant’s neck
while the assailant was in the apartment. And second, he saw
tattoo’s on the man’s shoulders and back when the assailant took
off his shirt while fleeing the scene. Whether defendant has
tattoos was an important consideration. Because the defense
tried to raise doubt in the juror’s minds by blaming Toby for
the assault, whether Toby has tattoos was also an important
consideration. Therefore, the outside information brought into
the jury room by juror number three, assuming he did so,
concerned an important factual determination -- whether Toby has
the tattoos Dawson saw on the assailant.
Despite the relevance of tattoos in this case, it is not
substantially likely that the information juror number three
brought into the jury room influenced the verdict of any of the
jurors. There was no evidence that Toby had tattoos. Balderaz
testified that Toby did not have tattoos. Although defendant
calls Balderaz’s testimony unreliable and it is apparent
Balderaz lied with respect to some matters, no evidence
contradicted her testimony concerning the tattoos. The booking
photograph of Toby that was sent to the jury room showed him in
a T-shirt. There was no visible tattoo on his neck, yet
Dawson’s testimony was that he saw a tattoo on the assailant’s
neck while the assailant still had his shirt on. Thus, the
information that booking photographs show a person’s tattoos
only provided cumulative evidence that Toby did not have
tattoos.

-- 17 of 26 --

18
Furthermore, the evidence against defendant was
overwhelming, as the trial court noted when it denied the motion
for new trial. Defendant has tattoos in the areas of his body
as Dawson recalled on his assailant. The assailant was
Hispanic, like defendant and not Toby, who has red hair and does
not appear to be Hispanic. Defendant was the one who fled the
scene in the car, both placing him at the scene and showing his
consciousness of guilt.
It is also not substantially likely any juror was actually
biased against defendant. As noted, the information that came
from outside the court, that booking photographs show a person’s
tattoos, did not, under the facts of this case, add any
information that would influence a juror’s individual decision
concerning defendant’s guilt. Furthermore, the actions of juror
number three in attempting to determine whether booking
photographs showed tattoos and, as we assume for the purpose of
argument, telling the jury that he found out that booking
photographs show tattoos do not evince bias on that juror’s
part. He was apparently trying to determine whether Toby
committed the crime, as the defense suggested. (Contra, Nesler,
supra, 16 Cal.4th at pp. 584-585 [actual bias found where juror
negatively influenced in deliberations by information obtained
outside courtroom about defendant’s drug use].)
Because defendant was not prejudiced by juror number
three’s misconduct, even if we assume the statements in juror
number four’s declaration are accurate, there is no need to
remand to the trial court for further proceedings.

-- 18 of 26 --

19
III
Blakely
Relying on Blakely, supra, 542 U.S. 296, defendant claims
the trial court erred in imposing an upper term sentence because
the court relied on facts not submitted to the jury and not
proved beyond a reasonable doubt. Defendant claims he received
ineffective assistance of counsel because his trial attorney did
not object to his sentence as a violation of Blakely. We
disagree.
In Blakely, the Supreme Court reiterated its holding in
Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]
that, “‘[o]ther 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.’” (Blakely, supra, 542 U.S. at p. 301.)
The statutory maximum is the greatest sentence the court can
impose based on facts reflected in the jury’s verdict or
admitted by the defendant. (Id. at p. 303.)
After Blakely, the California Supreme Court held that “the
judicial factfinding that occurs when a judge exercises
discretion to impose an upper term sentence . . . under
California law” does not violate this rule of law. (People v.
Black (2005) 35 Cal.4th 1238, 1244, 1254, 1262.)
Moreover, the trial court sentenced defendant to the upper
term based on his “prior criminal record” and because “for most
of his adult life [defendant has been] in custody.” Defendant’s
“prior criminal record” is a permissible sentencing

-- 19 of 26 --

20
consideration under Blakely. (Blakely, supra, 542 U.S. at
p. 301.) And, as one valid factor in aggravation is sufficient
to expose defendant to the upper term (People v. Cruz (1995) 38
Cal.App.4th 427, 433), the trial court’s consideration of
additional factors did not violate Blakely.
We disagree with defendant that the aggravating factor
relied on by the trial court went beyond “the mere fact of [his]
prior conviction[s].” The trial court noted defendant’s
numerous prior convictions and relied on his extensive record as
the basis for imposing an upper term.
As the sentence was imposed properly, defendant’s claim of
ineffective assistance of counsel fails.
DISPOSITION
The judgment is affirmed.
NICHOLSON , Acting P.J.
I concur:
RAYE , J.

-- 20 of 26 --

1
Concurring and Dissenting Opinion of BUTZ, J.:
I concur in parts I and III of the majority opinion.
However, I respectfully dissent from the majority’s
conclusion in part II that defendant was not prejudiced by juror
misconduct. (Maj. opn., ante, p. 9.)
As noted by the majority, even if the evidence against a
defendant is objectively overwhelming, the verdict still must be
set aside if the record establishes a substantial likelihood of
actual bias (maj. opn., ante, at p. 15). (In re Carpenter
(1995) 9 Cal.4th 634, 654 (Carpenter).) Assuming, as does the
majority, that Juror No. 3 was the juror who obtained the out-
of-court information in question (maj. opn., ante, p. 15), I
believe there is ample basis in the record for finding actual
bias.
Factors bearing on a determination of actual bias stemming
from juror misconduct include “the nature of the juror’s
conduct, the circumstances under which the information was
obtained[ and] the instructions the jury received,” in addition
to the evidence and issues presented at trial and the strength
of the evidence. (Carpenter, supra, 9 Cal.4th at p. 654.)
Here, the juror’s conduct and the circumstances under which
the information was obtained suggest actual bias. The juror
actively sought out information to supplement the evidence
presented at trial, in direct violation of the trial court’s
repeated admonition to the jury not to discuss the case with

-- 21 of 26 --

2
anyone or independently investigate the facts and, specifically,
not to consult any persons or reference materials for additional
information. The lack of inadvertence in procuring the
information in question underscores the importance of the
information, at the very least to the juror who obtained it.
Moreover, once the juror obtained the information, he
immediately disclosed it to the other jurors. When a juror
shares improperly obtained information with other jurors, it
tends to establish the importance of that information to the
juror making the disclosure. (See Carpenter, supra, 9 Cal.4th
at p. 657.) And, finally, assuming Juror No. 3 was the juror
who made the disclosure, he lied about this in a declaration to
the court, again suggesting the significance of the information
to this juror.
The information obtained as a result of the juror’s
misconduct related to a material issue at trial--the
determination of who committed the assault. The defense
presented evidence that “Toby” had asked defendant to drive him
to David Dawson’s home and that Toby had a motive for assaulting
Dawson. And although Toby was described as a redhead, Dawson’s
assailant was wearing a beanie that covered his hair and
forehead. The out-of-court information obtained by one of the
jurors pertained to an identifying feature of Dawson’s assailant
and tended to refute the defense that Toby committed the
assault.

-- 22 of 26 --

3
And, although the trial court instructed the jury numerous
times to determine the facts only from the evidence received at
trial, there is no basis to conclude this instruction had a
mitigating effect on the jury’s consideration of the out-of-
court information it received--the fact that the extraneous
information was obtained during deliberations demonstrates a
blatant disregard for the court’s admonition. Moreover, the
juror declarations suggest that, far from disregarding the
improper information during deliberations, the jurors reexamined
the evidence once the additional information was disclosed and,
shortly after, reached a verdict.
The majority confers significance on Sherish Balderaz’s
testimony that Toby did not have tattoos and the absence of any
evidence to contradict her testimony in this regard. (Maj.
opn., ante, at p. 17.) But Balderaz’s testimony lacked
credibility in every respect, particularly on issues that could
implicate Toby or her in any misconduct. The fact that the jury
sought out information concerning whether tattoos would be shown
on booking photos indicates, not surprisingly, that they had
doubts about Balderaz’s testimony in this regard. The absence
of contradicting evidence regarding whether Toby had tattoos
does not diminish the inference that can be drawn from the jury
misconduct that one or more jurors had doubts whether defendant
committed the assault on Dawson.
The majority contends the information was cumulative of
other evidence at trial that Toby did not have tattoos, because

-- 23 of 26 --

4
Toby was wearing a T-shirt in his booking photo (in which no
tattoos were visible), whereas Dawson observed tattoos on his
assailant’s neck before his shirt was removed. (Maj. opn.,
ante, at p. 17.) But Dawson’s testimony was equivocal in this
regard. Dawson was asked whether he observed “any scars or
tattoos” on defendant when he first came to Dawson’s apartment,
and his response was “on the neck.” But Dawson explained that
he only had “little flashes of visions of what [he] . . . had
seen[,] . . . almost [like] in a dream, where it’s really not
clear.” Later, when shown photographs of defendant’s neck and
shoulders, Dawson testified his assailant’s shirt could have
come up high enough to cover the tattoos. Dawson explained that
his main focus was on “[t]he barrel of that gun the entire
time.” This testimony was less than compelling on the issue of
whether Dawson’s assailant had tattoos that would be covered by
a T-shirt.
The majority claims the juror’s actions of seeking the
extraneous information and disclosing it to the other jurors
does not evince bias because the juror was trying to determine
whether someone else committed the offense. (Maj. opn., ante,
at p. 18.) But the result of the juror’s unauthorized
investigation was to bring information before the jury that
resolved adversely to defendant the jurors’ doubts concerning
defendant’s guilt. Regardless of the motivation of the juror
who sought out the information, the result was actual bias.

-- 24 of 26 --

5
The majority reiterates the trial court’s finding that the
evidence against defendant was overwhelming. (Maj. opn., ante,
at p. 18.) I agree with my colleagues that the strength of the
evidence on several of the charges--vehicle theft, evading and
resisting a police officer, the firearm charges--was so great
that defendant could not possibly have suffered actual prejudice
from introduction of the extraneous information at issue.
However, receipt of the information allowed the jurors to
discard the doubts they had about the possibility that Toby
committed the assault on Dawson, doubts based on evidence that
Toby had a motive for the offense and initiated the visit to
Dawson’s apartment on the date of the incident. At the very
least, the juror who sought out the extraneous information
harbored such doubts.
Defendant was entitled to a verdict based exclusively on
the evidence presented in court. (People v. Nesler (1997)
16 Cal.4th 561, 580-581.) “‘The requirement that a jury’s
verdict “must be based upon the evidence developed at the trial”
goes to the fundamental integrity of all that is embraced in the
constitutional concept of trial by jury. . . . [¶] In the
constitutional sense, trial by jury in a criminal case
necessarily implies at the very least that the “evidence
developed” against a defendant shall come from the witness stand
in a public courtroom where there is full judicial protection of
the defendant’s right of confrontation, of cross-examination,
and of counsel.’ [Citation.] As the United States Supreme

-- 25 of 26 --

6
Court has explained: ‘Due process means a jury capable and
willing to decide the case solely on the evidence before it
. . . .’” (Id. at p. 578.) Defendant was denied this
fundamental right in the present matter.
I disagree with the majority’s conclusion that, regardless
of how the juror misconduct occurred, no prejudice was
established. (Maj. opn., ante, at pp. 14-15.) In my view, a
factual resolution of how the misconduct occurred is necessary
for any determination of whether defendant was prejudiced. Yet,
despite the implications raised by Juror No. 4’s declaration and
Juror No. 3’s improper conduct, the trial court did not fully
address the evidence of misconduct. Because “the exact nature
of the misconduct is highly relevant to the initial
determination of bias” (Carpenter, supra, 9 Cal.4th at p. 657),
I would remand the matter for inquiry into the seemingly
conflicting juror declarations and a determination of whether
there is a substantial likelihood that defendant was biased by
juror misconduct. (See People v. Hayes (1999) 21 Cal.4th 1211,
1255 [court “‘must “make whatever inquiry is reasonably
necessary”’” to resolve question of possible juror misconduct].)
BUTZ _ , J.

-- 26 of 26 --