P. v. Hightower CA3

Filed 5/31/13 P. v. Hightower CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C070121

Plaintiff and Respondent, (Super. Ct. No. 11F03192)

v.

VALENTINO HIGHTOWER et al.,

Defendants and Appellants.

A jury found codefendants Valentino Hightower and Anthony Edwards guilty of two counts of robbery, and sustained various firearm enhancements as to both counts. The trial court sentenced them to state prison.

Both defendants challenge the extent of the trial court’s inquiry into whether the misconduct of a dismissed juror potentially affected any of the remaining jurors. We shall affirm the judgment.

1

FACTUAL AND PROCEDURAL BACKGROUND

The nature of defendants’ argument does not implicate the facts underlying the conviction, nor are we required to determine whether any error was prejudicial. We therefore omit the circumstances of the crimes.

On the second day of trial (after completing the selection and swearing of the jury), the court received a note from the bailiff. An excused juror (who was apparently part of a group of seven people excused for hardship before voir dire of the panel commenced) had told the bailiff she heard a woman—who had been attending to the child of defendant Edwards— instructing the child to smile in the presence of the jurors. The prosecutor then mentioned that she had seen an excused juror (“7818”) speaking to the second alternate juror (“0750”). The excused juror asked whether the alternate was going to tell about something that sounded like “smell.” The alternate then spoke with seated Juror No. 8 (“7187”), but the prosecutor could not hear the conversation. In light of this mention of a directive to smile, the prosecutor thought the word she heard might have been “smile” rather than “smell,” so the prosecutor wanted to question the second alternate juror and Juror No. 8 to determine if this was the subject of the excused juror’s conversation. When questioned, neither the alternate juror nor Juror No. 8 was aware of any information about individuals related to the case doing anything.