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People v. Mendoza12/9/2002
THE COURT
INTRODUCTION
Appellant Jose Miraz Mendoza (Mendoza) was convicted of one felony count of transportation of amphetamine and two misdemeanor counts related to drunk driving . During the first portion of his bifurcated jury trial, a court worker inadvertently placed a set of proposed jury instructions that revealed allegations of Mendoza's prior convictions for drug-related offenses and his conviction of a strike prior on the jurors' chairs. Mendoza appeals his conviction alleging the inadvertent revelation of his prior convictions constitutes prejudicial juror misconduct. He also contends the court, in investigating the possibility of improper juror bias, improperly polled the jurors' thoughts or feelings in violation of Evidence Code section 1150. We will conclude that, although there was juror misconduct, Mendoza effectively waived the right to move for a new trial. We also will conclude that any claim of erroneous admission of evidence of jurors' thoughts was effectively waived.
STATEMENT OF THE CASE AND FACTUAL BACKGROUND
On July 29, 1996, Officer David Putnam of the Kings County Sheriff's Department stopped a car that was being driven slowly and was swerving from side-to-side. The driver of the car was identified as Mendoza, who was unable to provide either a driver's license or identification. Based on Putnam's observation of Mendoza's slow, slurred speech, watery eyes and based on the smell of alcohol on his breath, Putnam concluded Mendoza was intoxicated.
Pursuant to departmental policy, Putnam called for assistance from the California Highway Patrol (CHP). Officer Guillen of the CHP arrived about 15 minutes later. Based on field sobriety tests, as well as a field breath alcohol test, Guillen concluded Mendoza was intoxicated and transported him to the Kings County jail. An intoxilizer breath test was administered and results indicating blood alcohol levels of 0.1 and 0.11 were obtained.
Mendoza was arrested and a search incident to his arrest was conducted. A small plastic bindle containing a brown, powdery substance was pulled from his watch pocket. The bindle was later determined to contain 0.7 grams of amphetamine.
On July 23, 2001, an amended complaint was filed in Kings County alleging, in count I, that Mendoza had unlawfully transported amphetamine in felony violation of Health and Safety Code section 11379, subdivision (a). With respect to this count, it also was alleged Mendoza had suffered two prior drug-related convictions within the meaning of section 11370.2, subdivision (c). It also was alleged Mendoza had suffered one prior conviction of a serious or violent felony within the meaning of the three strikes laws. Counts II and III alleged misdemeanor driving while intoxicated within the meanings of Vehicle Code sections 23152, subsections (a) and (b), respectively.
During jury deliberations in the first part of the bifurcated trial, and out of the presence of the jury, the court informed both attorneys it had prepared a set of draft jury instructions for the trial on the allegations of the prior convictions. The court gave the draft instructions to the attorneys for their review. The attorneys were advised the jury would receive those instructions if guilty verdicts were returned. At 1:40 p.m., the jury reassembled in the courtroom to receive oral instructions pertaining to a requested read-back of testimony. The jury resumed deliberations at 2:10 p.m., and informed the court it had reached verdicts at 2:35 p.m. The jury found Mendoza guilty of all counts.
Following the reading of jury instructions pertaining to the trial on the priors, the court informed t
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