Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F16504
Duffy, J.
Defendant Gus Gerard Laverriere was convicted after a jury trial of carjacking a public bus in which he was a passenger. In bifurcated proceedings, the court found true the allegation that defendant had a prior serious felony conviction. After the court on its own motion reduced the conviction to attempted carjacking, it sentenced defendant to a term of 10 years in prison.
On appeal, defendant contends that the court abused its discretion by failing to conduct a hearing to determine if a juror observed defendant in the courtroom being shackled. The Attorney General contests the challenge. Defendant also argues that the court erred in limiting his presentence credits to 15 percent of the actual days served; the Attorney General concedes this error. We find that defendant forfeited the challenge of the trial court’s failure to conduct a hearing concerning the juror’s possible observation of defendant’s shackling. We conclude further that there was no error even were the claim not forfeited. We also find that the court erred in limiting defendant’s presentence credits. We therefore will order the judgment modified to reflect the correct number of days of credit and affirm the judgment as modified.
FACTS
I. Prosecution Trial Evidence
On February 3, 2008, Douglas Vest, a bus operator with Santa Cruz Metropolitan Transit District, was driving his bus northbound on Highway 1 from Watsonville toward Santa Cruz. He had 10 passengers. Traffic began slowing south of the Mar Monte exit because there was an overturned vehicle with a trailer and a tow truck in the center of the highway, and the bus slowed to about five to 10 miles per hour. Just before the bus came to the accident scene, defendant came to the front of the bus and stood in a prohibited area in front of the “Stand D” yellow line. Defendant said in an agitated voice, “ ‘I need to get out. That’s my girlfriend. That’s my car.’ ” Defendant said at least twice—in the form of a demand—that he needed to get off the bus. Vest told him that he needed to move behind the yellow line. Vest—knowing that it was against company policy to let off passengers at an unsafe place such as a highway—radioed his supervisor to have him advise what the next best option would be to address defendant’s concerns. The supervisor confirmed that Vest could not let defendant off on the highway but permitted Vest to make an unscheduled stop at the next exit, Larkin Valley Road.
As Vest was hanging up the receiver from the call, defendant went to the rear of the bus; he violently shook the back doors and tried unsuccessfully to exit the bus. Defendant then ran to the front, getting within two feet of Vest. (By this time, they were about 200 to 300 yards past the accident scene.) As the driver pointed ahead and was in the process of telling defendant that he would stop at the Larkin Valley Road exit, defendant “grabbed the top of the steering wheel with both hands and gave it a violent crank to the right.” At the time, Vest was holding the wheel at about the “6:00 o’clock” position. As defendant grabbed the steering wheel, the left side of his body touched Vest’s right shoulder. Vest tried to keep the bus on course, but it turned rather sharply at about a 35 degree angle. Vest was able to correct the angle of the turn slightly and as he did so, he applied the brakes. The bus “plowed into” the hillside at about 30 to 35 miles per hour. It struck the soft dirt of the hillside at an angle and the bus “pretty much plow[ed] to a stop.”
On cross-examination, Vest admitted that he filed a report after the incident in which he indicated that the bus had been traveling at about 20 miles per hour at the time of impact. He explained on redirect examination that he believed the bus had been traveling at about 35 miles per hour, he hit the brakes, and that its speed was about 20 miles per hour when it hit the hillside.
After the bus came to a stop, Vest turned the bus off and opened the front door. Defendant “just bailed out the front door and fled to the back, up the road.” Vest checked with the passengers and determined that no one was hurt.
The prosecution called several passengers of the bus to testify regarding the events of February 3, 2008. Three teenaged friends who were riding the bus from Watsonville to Santa Cruz (Sam C., Zachary V., and Tyler P.) corroborated Vest’s testimony that after defendant observed the accident in the center of the highway, he approached the driver demanding that he pull over to let him off the bus; then tried unsuccessfully to exit from the side door by shaking it aggressively; returned to the front of the bus and demanded that the driver stop at once, and grabbed the steering wheel and turned it quickly to the right, causing the bus to veer at a sharp angle to the right and ultimately crash into the side of an embankment; and then immediately exited the bus after it came to a stop.
At least three deputies from the Santa Cruz County Sheriff’s Office, Robert Lindblad, Daniel Brierley, and Benjamin Haines, responded to the scene. Deputy Lindblad observed a Santa Cruz Metro bus that was located in an embankment “at a pretty steep angle” off Highway 1 north of the Mar Monte exit. There was “mud up on top of the bumper and [the bus] had moved quite a bit of earth.” Deputy Lindblad noted that none of the passengers reported injuries, but that the bus driver indicated that he had soreness in his left hand. Deputy Brierley interviewed defendant at the scene after first giving him Miranda warnings. He asked defendant if he had anything to do with the bus crashing. Defendant said that he had “ ‘helped [the driver] turn’ ” by placing his right hand on the steering wheel because the driver “ ‘was taking his time to pull over.’ ” Defendant said that the bus then “ ‘smashed into the hillside.’ ”
Miranda v. Arizona (1966) 384 U.S. 436.
In addition, the prosecution entered into evidence a short statement made by defendant at his arraignment. Defendant said “ ‘I might be guilty of pulling the bus over.’ ”
II. Defense Trial Evidence
California Highway Patrol Officer Scott Zilge testified that on February 3, 2008, he investigated a one-car accident that occurred on Highway 1. He observed a damaged Nissan Pathfinder SUV with an attached travel trailer. The SUV and trailer had rolled over approximately three times with the SUV on its wheels on the guardrail and the trailer on its right side with its contents spilled into the roadway. The debris from the accident impeded traffic.
Deputy Sheriff Haines testified that he briefly interviewed three teenaged passengers on the bus. He determined that their emotional state was “excited... similar to the excitement you get after you’ve just got[ten] off a roller coaster the first time.” They were not crying or shaking.
Pedro Legorreta, transit supervisor with the Santa Cruz Metropolitan Transit, testified that on February 3, 2008, he received a radio communication from Vest requesting permission to stop his bus. Legorreta ordered Vest not to stop the bus on the highway. He did not give Vest permission to deviate from the bus’s scheduled route by taking the next exit off of the highway.
Robert Lindskog, an accident reconstruction expert, testified that he had examined photographs taken by police officers at the scene. He noted from that review that there were no skid marks on the pavement in the vicinity of where the bus left the road and therefore concluded that the brakes were not applied hard enough to lock up the wheels. He estimated that the bus traveled a distance of about 60 feet from the location where it left the road to its point of impact with the embankment and was traveling at an estimated 23 miles per hour. Lindskog also concluded that the passengers would have experienced the sensation of a gradual slowing to a stop rather than a stop that would be perceived as “sudden or abrupt which we associate with [a] panic type of thing or impact.” He also determined that the bus came to rest at about an 18 degree angle, a tilt that was very far from an angle where the bus would be in danger of a rollover.
PROCEDURAL BACKGROUND
Defendant was charged by a four-count second amended information with one felony count of carjacking in violation of Penal Code section 215, subdivision (a), and three counts of felony child abuse (§ 273a, subd. (a)). The information also contained a special allegation that defendant had suffered a prior conviction of a serious or violent felony within the meaning of section 667, subdivisions (b) through (i). After a jury trial, defendant was found guilty of carjacking. The jury was unable to reach a verdict as to the three child abuse counts and the court declared a mistrial. In bifurcated proceedings, after defendant waived his right to a jury trial, the court found true the allegation that defendant had suffered a prior serious or violent felony conviction. The three counts of child abuse were dismissed in the interests of justice.
All further statutory references are to the Penal Code unless otherwise stated.
Thereafter, defendant filed a motion to have the court exercise its discretion to strike the prior serious felony conviction allegation in accordance with People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), which motion was opposed by the People. On December 17, 2008, the court denied defendant’s Romero motion. The court on its own motion reduced the conviction to the crime of attempted carjacking (§§ 215, subd. (a), 664), and sentenced defendant to a total prison term of 10 years, based upon the imposition of the low term of two years and six months for the carjacking conviction, doubled pursuant to section 667, subdivision (e)(1), and an additional consecutive five-year term for the prior strike conviction (§ 667, subd. (a)(1)). Defendant filed a timely notice of appeal from the judgment.
On December 3, 2008, prior to sentencing, defense counsel expressed doubt as to her client’s competence, and the court accordingly suspended criminal proceedings pursuant to section 1368. The court thereafter on December 17, 2008, accepted the conclusions of a court-appointed psychiatrist that defendant was competent and reinstated criminal proceedings.
DISCUSSION
I. Juror’s Alleged Witnessing of Defendant Being Shackled
A. Procedural Background
Defendant’s principal claim on appeal is that the court committed error by failing to conduct a hearing to determine whether a juror had witnessed defendant being shackled in open court and, if so, whether she had discussed the shackling with the other jurors. Defendant argues that the deputy district attorney advised the court that Juror Number 6 may have witnessed defendant being shackled in court and the court, having been apprised of this information, was required to proceed with a hearing to inquire into the matter.
The court called a recess after the prosecutor gave her opening argument. Before calling the jury back into the courtroom, the following dialogue between the court and the prosecutor transpired: “THE COURT: All right. Mr. Laverriere’s matter. All right. The jury is waiting outside prior to the presentation of the defense argument. At the conclusion of this morning’s session, the Court personally observed Mr. Laverriere not only becoming a little verbally out of control but pushing, slightly, his attorney. [A]nd under the circumstances the Court, without anything more, directed... court security to put a leg brace on Mr. Laverriere and I believe that has been accomplished. [A]nd, with that, we may proceed. [¶ THE PROSECUTOR:] Your Honor, there’s actually a couple of things on the record and I don’t know how the Court would like to handle it, but Juror 6 [Name redacted] was actually still in the court and may or may not have observed some of it. [¶] THE COURT: I think just let it be. There’s nothing I can do. If she observed it she observed it. I can’t do anything about it.”
Because the record as to what transpired is short and contains ambiguity (as explained below), we will quote the entire passage from the reporter’s transcript relevant to the issue.
B. Discussion
Defendant contends that the court, based upon the information provided to it by the prosecutor, was under a duty to conduct an inquiry to evaluate whether the circumstances warranted the discharge of Juror Number 6. In support of this position, he cites, among other cases, People v. Farnam (2002) 28 Cal.4th 107 (Farnam). For the reasons we discuss below, we reject defendant’s claim of error because it was forfeited and, in any event, it is without merit.
The principle on which defendant relies was explained by the high court in Farnam, supra, 28 Cal.4th at page 141, as follows: “When 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 if the juror should be discharged and failure to make this inquiry must be regarded as error.’ [Citations.]” It is also true, however, that “the mere suggestion of juror ‘inattention’ ” by a juror or “[c]ounsel’s mere speculation that the juror might have been sleeping” is insufficient to give rise to a judicial duty of inquiry. (People v. Espinosa (1992) 3 Cal.4th 806, 821 (Espinosa).)
We first address the failure of defense counsel to preserve the matter below. There is nothing in the record to suggest that defendant’s attorney requested that the court conduct an inquiry into whether Juror Number 6 had observed defendant being shackled. Further, defense counsel did not object to the court’s failure to conduct a hearing after it indicated that it would “just let it be.” Defendant forfeited the challenge under People v. Ward (2005) 36 Cal.4th 186, 207 (Ward). In Ward, the defendant had been observed by several jurors in the hallway in shackles as he was being brought into the courtroom. (Ibid.) The court denied defense counsel’s motion for mistrial, but offered to give an instruction to the jury that it not consider the fact that the defendant had been brought to the courtroom in chains; however, at defense counsel’s suggestion, the court gave “a ‘more general’ admonition not to consider the fact he was in custody.” (Ibid.) The high court rejected the defendant’s challenge that the court erred by failing to conduct a hearing to determine the effect, if any, his shackling had upon the jury. (Ibid.) The court concluded, “We are not persuaded that defendant preserved the issue for review. Indeed, he failed to object or request a further inquiry, and we can well conceive of tactical reasons for not making such a request.” (Ibid.)
Likewise, here, the matter was not preserved for appeal. And, as was the case in Ward, we can conceive of tactical reasons why defense counsel might not have pressed the issue. Juror Number 6’s purported observation of defendant’s shackling—if such observation occurred at all—took place between the completion of the prosecution’s opening argument and defendant’s argument. Given that timing, as well as the possible strategy of not calling undue attention to the matter, defense counsel may well have concluded that it was in her client’s best interest to (as the court put it) “just let it be.” As the Supreme Court has explained, “To consider on appeal a defendant’s claims of error that were not objected to at trial ‘would deprive the People of the opportunity to cure the defect at trial and would “permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal.” ’ [Citation.]” (In re Seaton (2004) 34 Cal.4th 193, 198, quoting People v. Rogers (1978) 21 Cal.3d 542, 548.) Defendant forfeited the claim of error.
Even were we to consider defendant’s claim not forfeited, we would reject it on the merits. As noted above, the standard upon which a duty arises for the court to conduct an inquiry is where “a trial court is put on notice that good cause to discharge a juror may exist....” (Farnam, supra, 28 Cal.4th at p. 141.) Here, the court was not put on such notice. Indeed, the limited and ambiguous information found in the record suggests that the circumstances were at least one, if not two, steps removed from a “good cause” showing. First, it is unclear what the prosecutor was referring to when she advised the court that Juror Number 6 “may or may not have observed some of it.” The “ ‘it’ ” the prosecutor mentioned may have been the event preceding defendant’s shackling that the court mentioned, namely, defendant “becoming a little verbally out of control but pushing, slightly, his attorney.” Were that what the prosecutor was referring to, there would be no basis for an inquiry into whether the juror observed defendant being shackled, and, if so, whether that observation would prevent her from faithfully discharging her duties. Second, even if it were clear that the prosecutor told the court that Juror Number 6 “may or may not” have witnessed defendant’s shackling, this information would have been insufficient to create a mandatory duty of inquiry by the court; it constituted only the unverified possibility that the juror was exposed to the shackling. As such, it was not “notice that good cause to discharge a juror may exist....” (Farnam, at p. 141.)
Espinosa, supra, 3 Cal.4th 806 is instructive. There, the defendant asserted error based on the failure of the trial court to conduct an inquiry in response to defense counsel’s statement “that a certain juror ‘appeared’ to be asleep.” (Id. at p. 821.) The trial court indicated that it had not observed this. (Ibid.) The high court rejected the challenge, reasoning, “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. [Citation.] We have recently explained, however, that the mere suggestion of juror ‘inattention’ does not require a formal hearing disrupting the trial of a case. [Citation.] [¶] Here, defense counsel stated that, after watching the juror in question for ‘several seconds,’ he thought the juror ‘appeared’ to be asleep. Counsel’s mere speculation that the juror might have been sleeping, which was insufficient to apprise the trial court that good cause to discharge might exist, did not obligate the court to conduct any further inquiry.” (Ibid.) Here, as was the case in Espinosa, the “mere speculation” that Juror Number 6 might have seen defendant in shackles—or, for that matter, the speculation that the prosecutor’s reference to “it” was to the possibility that the juror may or may not have made such an observation—did not put the court on notice of circumstances showing good cause might exist for discharging that juror.
The cases cited by defendant are not helpful to his position. For example, in Farnam, supra, 28 Cal.4th 107, the court was apprised that during a lunch break, a juror was the victim of a purse snatching that was witnessed by three other jurors. (Id. at p. 139.) The court conducted two separate hearings on the issue and rejected the defendant’s challenge that the inquiry was insufficient. (Id. at p. 141.) Obviously, in Farnam, in stark contrast to the case here, there were unambiguous factual circumstances establishing that good cause might have existed for discharging one or more of the jurors.
Likewise, in People v. Burgener (1986) 41 Cal.3d 505, disapproved on other grounds in People v. Reyes (1998)19 Cal.4th 743, 746, the court was informed by the jury foreman that one of the jurors had been intoxicated for two days of the deliberations; the foreman also reported that four other jurors had independently expressed concern about the issue. (Burgener, at p. 517.) The Supreme Court concluded that it was error for the trial court to have failed to conduct a hearing on the matter because it was on notice that good cause may have existed for discharging the juror. (Id. at pp. 518-519.) Again, unlike the case before us, there was clear evidence upon which the duty of the court to conduct an inquiry arose.
People v. McNeal (1979) 90 Cal.App.3d 830 (McNeal), relied on extensively by defendant, is also distinguishable. There, the trial court was informed by the jury foreman that another juror had disclosed that she had personal knowledge that had a bearing on how she would vote. (Id. at p. 835.) The court never held a formal hearing as provided in section 1120 to determine if the juror should be discharged. (McNeal, at p. 836.) The appellate court concluded that the court erred by failing to conduct a formal inquiry to determine whether the juror should be discharged. (Id. at pp. 837-839.) Unlike the circumstances here, in McNeal, there were clear facts known to the trial court from which a duty arose to conduct a hearing to determine if the juror should be discharged.
“If a juror has any personal knowledge respecting a fact in controversy in a cause, he must declare the same in open court during the trial. If, during the retirement of the jury, a juror declare a fact which could be evidence in the cause, as of his own knowledge, the jury must return into court. In either of these cases, the juror making the statement must be sworn as a witness and examined in the presence of the parties in order that the court may determine whether good cause exists for his discharge as a juror.” (§ 1120.)
We therefore reject defendant’s claim that the court erred by failing to conduct a hearing to determine whether Juror Number 6 had observed defendant’s shackling, both because the claim has been forfeited and because it lacks merit.
II. Sentencing Credits
After the court on its own motion reduced defendant’s conviction from carjacking to attempted carjacking, it proceeded with sentencing. Based upon the belief that attempted carjacking was a serious and violent felony—a belief that was confirmed when the court made inquiry of the assistant district attorney—the court concluded that defendant was entitled to 15 percent of presentence credits under section 2933.1, subdivision (a), and applied that limitation to the credits given to defendant.
“(a) Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.” (§ 2933.1.)
Defendant contends that this was error because attempted carjacking, unlike carjacking, is not a felony specified under section 2933.1, subdivision (a), for which the 15 percent worktime credit limitation applies. He argues further—citing People v. Aguirre (1997) 56 Cal.App.4th 1135, 1139—that, although his trial counsel failed to object to this error at the sentencing hearing, the claim is not forfeited. The Attorney General concedes the error but does not address defendant’s assertion that the claim is not forfeited.
We agree that the court erred in imposing a 15 percent limitation on the worktime credits to which defendant was entitled. Under section 2933.1, subdivision (a), the court must impose this limitation where the conviction is one of the felonies listed in section 667.5, subdivision (c). (See In re Reeves (2005) 35 Cal.4th 765, 768 [under section 2933.1, worktime credit available only at reduced rate for “prisoners convicted of designated offenses”].) Carjacking is one of those enumerated felonies (§ 667.5, subd. (c)(17)); attempted carjacking is not so listed. Since the 15 percent limitation on worktime credit is applicable only to “specified felons” (People v. Cooper (2002) 27 Cal.4th 38, 40), the court erred in applying that limitation here where the conviction was not one of the offenses specified as a violent felony under section 667.5, subdivision (c). (See People v. Garcia (2003) 107 Cal.App.4th 1159, 1166 [15 percent limitation erroneously applied where defendant convicted of felony evasion of peace officer]; In re Mitchell (2000) 81 Cal.App.4th 653, 656-657 [worktime credit limitation under § 2933.1 not applicable to conspiracy to commit residential robbery in concert].) Furthermore, the failure of defendant’s trial counsel to object to the error does not render the claim forfeited. (Cooper, at p. 41, fn. 3, citing People v. Aguirre, supra, 56 Cal.App.4th at p. 1139.)
The Attorney General asserts that it would be appropriate for us as the reviewing court in the interest of judicial economy to correct the trial court’s miscalculation of credits. We agree. (See People v. Jones (2000) 82 Cal.App.4th 485, 493.) Presentence custody credit is calculated under section 4019 by (1) dividing the number of days spent in actual custody by four and rounding the figure down to the nearest whole number; (2) multiplying that number by two to calculate the number of days of conduct credit; and (3) adding the number of days of conduct credit to the number of days spent in actual custody. (People v. Williams (2000) 79 Cal.App.4th 1157, 1176, fn. 14.) It was undisputed from discussions at the sentencing hearing that defendant had 210 days of custody credit. Therefore, applying the proper formula, defendant was entitled to 210 actual days’ credit plus 104 days’ credit pursuant to section 4019, for a total of 314 days’ credit. We will modify the judgment to reflect the proper number of credits.
DISPOSITION
The judgment is modified to reflect that defendant shall receive a total number of 314 days’ credit, determined by the award of 210 days’ actual credit and 104 days’ local conduct credit. As modified, the judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment and transmit it to the Department of Corrections.
WE CONCUR: Bamattre-Manoukian Acting P.J., Mihara, J.