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People v. Alcorn6/28/2002
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Anthony Alcorn appeals from the judgment entered following a jury trial in which he was convicted of inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)) and his admission of having sustained two prior convictions on which he served prison terms (§ 667.5, subd. (b)), one of which also qualified as a strike under the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
Defendant contends that his conviction should be reversed because the trial court failed to conduct an inquiry as to whether a juror saw him in handcuffs and because the jury was instructed pursuant to CALJIC No. 17.41.1, that his admissions of prior convictions should be reversed because he was not adequately advised of his constitutional rights, that the trial court abused its discretion in failing to reduce his sentence to a misdemeanor, and that his sentence constitutes cruel and unusual punishment. The Attorney General contends that the trial court erred in staying sentence on one of the section 667.5, subdivision (b) enhancements and that therefore the matter must be remanded for resentencing. We find merit in the Attorney General's contention but otherwise affirm the judgment.
FACTS
On April 17, 2001, California Highway Patrol Officer Shawn Pomerleau observed a Mercury automobile being driven erratically on Interstate 60 and signaled it to stop. Upon approaching the vehicle, Pomerleau detected the odor of alcohol and saw that the driver, Sandra Saenz, was crying and had a large bruise on her right eye. Defendant, who was in the passenger seat, got out of the car. His gate was unsteady. Saenz told Pomerleau that she and defendant were returning from a gambling trip in Nevada and were arguing about money defendant had lost. During the argument, defendant hit Saenz with her purse. Saenz cried while speaking with Pomerleau and did not object when defendant was placed under arrest.
At trial, Saenz testified that she lives with defendant and that they had both been drinking when they were stopped by Pomerleau. She claimed that defendant hit her with the purse by accident.
DISCUSSION
1. Failure to Conduct Juror Inquiry
In the session that began immediately after the jury was seated, but outside the jury's presence, defense counsel stated that, although he was not making a motion, defendant had asked him to make the court aware that "when he was being brought out in handcuffs, the door was open and some of the jurors, specifically number 7, saw him. So he's concerned that the juror saw him detained." The bailiff thereafter told the court that the handcuffs were placed behind defendant's back and "he couldn't be seen."
The court stated: "All right. I think this is a situation where if we bring it to the juror's attention and ask questions about it, that we actually cause more damage than anything else. You [defense counsel] have made your record. But I think it's a situation where it's better left alone than to continue in it. We're not certain that in fact the juror saw the defendant. He thinks he may have. But on the other hand he didn't see his cuffs. There is a possibility based on the circumstances that he may conclude that [defendant] was in custody or has been in custody. He may not. By bringing the jury in and asking questions, I think that we
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