People v. Austin CA2/6

Filed 11/17/15 P. v. Austin CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B256044 (Super. Ct. No. 2004300169) Plaintiff and Respondent, (Ventura County)

v.

JEREMY KINGSLY AUSTIN,

Defendant and Appellant.

Jeremy Kingsly Austin appeals a judgment after conviction by jury of home invasion robbery (Pen. Code, §§ 211, 213, subd. (a)(1)(A))1; two counts of first degree residential burglary (§ 459); false imprisonment (§ 236); assault with a firearm (§ 245, subd. (a)(2)); and assault with a deadly weapon (§ 245, subd. (a)(1)). The trial court sentenced him to seven years eight months in state prison. Austin contends that post-accusation delay violated his constitutional right to a speedy trial and the trial court abused its discretion when it did not inquire into possible juror misconduct. We affirm. BACKGROUND Austin committed two burglaries of occupied dwellings in one week in May 2004. Eyewitnesses to both crimes identified him.

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

In September 2004, the Ventura County District Attorney filed a complaint charging Austin with the crimes. After a preliminary hearing, the trial court held Austin to answer and admitted him to bail. The prosecution produced all evidence in its possession to defense counsel. The trial court ordered Austin to appear March 15, 2005, for a pretrial conference. He did not appear. The trial court issued a warrant. Austin had been arrested in Santa Barbara on March 9, 2005, after committing burglaries there. When he failed to appear in Ventura on March 15, the deputy district attorney told the trial court, "Apparently Mr. Austin was arrested for robbery in Santa Barbara, so I assume the Court should just issue a bench warrant." The Ventura court issued a warrant. It later granted a surety's motion to forfeit the bond based on Austin's arrest and took no further action on the case until 2012. A jury convicted Austin in the Santa Barbara case and the Santa Barbara Superior Court sentenced him to 35 years in state prison. We affirmed the Santa Barbra conviction. (People v. Austin (May 29, 2007, B186959) [nonpub. opn.].) In 2012, Austin filed a demand for trial in the Ventura case. (§ 1381.) He was promptly transported to Ventura. The Ventura County Superior Court granted seven defense requests for continuances, and Austin waived time for trial to November 27, 2012. The last request was based on the public defender's discovery that audiotapes of witness interviews and other physical evidence had been destroyed after being discovered to private defense counsel in 2004. On November 9, 2012, Austin moved to dismiss the Ventura case, arguing that post-accusation delay violated his constitutional right to a speedy trial. The trial court denied his motion. We denied Austin's petition for writ of mandate or prohibition in which he challenged the denial. (Austin v. Superior Court (Mar. 25, 2013, B246520).) A Ventura jury convicted Austin of the two robberies, false imprisonment, and the assaults. It acquitted him of attempted home invasion robbery