Wednesday, August 15, 2007

California DUI - conviction reversed by Court of Appeals

California DUI - conviction reversed

8/15/07

People v. Reynaga

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,
Plaintiff and Respondent,

v.

SAMMY SALVADOR REYNAGA,

Defendant and Appellant.
H029542
(Santa Cruz County

Super. Ct. No. F09677)


On July 7, 2005, the Santa Cruz County District Attorney filed an amended information in case No. F09677 charging appellant with various offenses occurring on different dates. Counts one through seven were alleged to have occurred on January 15, 2005. Count one charged battery with injury on a police officer (Pen. Code, § 243, subd. (a)(2)); count two, resisting a police officer with serious bodily injury (Pen. Code, § 148.10); count three, possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); count four, resisting a police officer (Pen. Code, § 148, subd. (a)(1)); count five, driving under the influence of drugs or alcohol (Veh. Code, § 23152, subd. (a)); count six, driving with a blood alcohol level of .08 (Veh. Code, § 23152, subd. (b)); and count seven, driving with a suspended license (Veh. Code, § 14601.2 subd. (a)). As to counts one through three, the information alleged that at the time of the commission of the offenses appellant was released from custody within the meaning of Penal Code section 12022.1.

Counts eight through 11 were alleged to have occurred on June 17, 2004. Count eight charged possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); count nine, possession of an ingestion device (Health & Saf. Code, § 11364); count 10, giving false information to a police officer (Pen. Code, § 148.9, subd. (a)); and count 11, driving on a suspended license (Veh. Code, § 14601.2, subd. (a)).

Count 12 charged driving on a suspended license (Veh. Code, § 14601.2, subd. (a)), alleged to have occurred on April 14, 2004. Count 13 charged driving on a suspended license (Veh. Code, § 14601.2, subd. (a)) alleged to have occurred on June 1, 2003.

The information alleged that appellant had one prior strike conviction within the meaning of Penal Code section 667, subdivisions (b)-(i) and had served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).

On July 20, 2005, a jury found appellant guilty on all counts except count three and found true the on-bail enhancements as to counts one and two.

After waiving a jury trial, appellant's prior conviction was tried to the court. The court found the prior conviction allegation to be true.

On October 24, 2005, the court sentenced appellant to an aggregate term of eight years consisting of the mid-term of three years on count two doubled because of the prior strike (Pen. Code, § 667 subds. (b)-(i)), plus two years for the on-bail enhancement (Pen. Code, § 12022.1). On count one, the court imposed the mid-term of two years plus two years for the on-bail enhancement to run concurrently with the sentenced imposed on count one. In addition, the court imposed the mid-term of two years on count eight to run concurrently. Further, the court imposed and stayed two one-year terms for the prison priors. In addition, the court sentenced appellant to 30 days in the county jail for counts four through seven and nine through 13 to be served concurrently with the prison term. The court awarded appellant 355 days actual credit and 118 days of Penal Code section 4019, subdivision (b) credits for a total of 473 days of credit for time served.

Appellant filed a timely notice of appeal.

On appeal, appellant raises nine issues. First, he contends that the judgment of conviction must be reversed because the jury inadvertently learned prior to deliberations that he "took or attempted to take a deal." Second, his conviction on count two must be reversed because the evidence is insufficient to support a finding that he was the proximate cause of Officer Hughes's injuries. Third, his convictions on counts one and two must be reversed because the evidence is insufficient to show the statutory element of a lawful arrest. Fourth, he may not be convicted of a violation of Penal Code section 243, subdivision (c) because Officer Hughes's testicular injury did not require medical treatment. Fifth, his conviction on count four, misdemeanor resisting arrest must be reversed because the jury may have found him guilty based on the facts charged in count two. Sixth, his conviction on count four must be reversed because the jury was not given a unanimity instruction. Seventh, the true finding as to one of the on-bail enhancements (Pen. Code, §12022.1) must be reversed because the evidence was insufficient to support a finding that he was convicted of a primary felony. Eighth, the true findings on both on-bail enhancements must be reversed because the trial court failed to give the jury any instructions on the elements of the enhancements. Ninth, the on-bail enhancements must be reversed because the prosecutor committed misconduct during closing argument by presenting facts to the jury that were extraneous to the evidence presented at trial. We find merit in appellant's first contention and reverse the judgment.

Facts and Proceedings Below
Prosecution's Case

Count 13 - June 1, 2003, Driving On a Suspended License

(Veh. Code, § 14601.2, Subd. (a))

At approximately 7:30 p.m. on June 1, 2003, Capitola Police Officer Andrew Dally observed a gold-colored Ford Explorer driving on Rosedale Avenue. Officer Dally knew appellant and recognized him as the driver of the Explorer. Mary Reynaga was in the front passenger's seat. Appellant turned left and passed Officer Dally's car. Officer Dally radioed his dispatcher, asking the dispatcher to check the status of appellant's driver's license. He learned it was suspended. Officer Dally located appellant's vehicle approximately 10 minutes later parked at Mary Reynaga's home. Appellant was not there. Officer Dally submitted a report to the district attorney's office.

Count 12 - April 14, 2004, Driving On A Suspended License

(Veh. Code, § 14601.2, Subd. (a).)

At approximately 1:00 p.m. on April 14, 2004, Santa Cruz Police Detective Brent Northrup was in plain clothes driving an unmarked police car. He observed that a white Volvo failed to stop at an intersection. The Volvo pulled in front of him, causing him to brake to avoid a collision. He sounded his horn. Detective Northrup "pulled the [vehicle's emergency] light down, so it was visible to the people in front of [him] [and] activated the light . . . ." The Volvo did not stop. Detective Northrup "activated the siren just briefly" "and [the Volvo] pull[ed] over." Appellant was the driver and Genevra Migliore was the passenger. Detective Northrup walked to the car and spoke with appellant. He cited appellant for driving on a suspended license.

Counsel stipulated that appellant's license was suspended from 2003 through the present time and that appellant had knowledge of the suspension.

Counts 8-11, Multiple Offenses, June 17, 2004
At approximately 6:56 p.m., on June 17, 2004, Santa Cruz Police Officer Holly Hoy was driving on Ocean Street. She pulled her police cruiser in behind a 1980 blue Buick that had a non-operational brake light and an expired registration tag. After she activated her emergency equipment (lights and siren), the Buick stopped. Officer Hoy approached the driver's side of the car and asked the driver for identification. The driver, who later identified himself as appellant, gave his name as Jesse Reynaga. He said he was going to the hospital because his passenger was pregnant and having problems. Officer Hoy offered to call an ambulance, but neither appellant nor the passenger said one was necessary. Appellant provided no written identification. He gave his date of birth as October 29, 1974. Officer Hoy noticed appellant bend over and reach down by his seat with his right hand. The passenger was moving around also. Officer Hoy told appellant and the passenger to keep their hands where she could see them. Officer Hoy noticed that the passenger had a metal object beneath her left leg. The passenger said that it was a knife, which she handed to Officer Hoy. Officer Hoy placed it on top of the car.

After Officer Hoy called for other officers to help, Officers Romel Cuellar and Karina Cecena arrived. Officer Cuellar watched the passenger while Officer Cecena talked with appellant. Eventually, appellant admitted that he was Sammy Reynaga. When Officer Hoy learned that appellant had outstanding warrants, she handcuffed and searched him. The passenger was removed from the car, but not searched. Officer Hoy did not see appellant hide anything. Officer Hoy seized two pipes from appellant. One of the pipes was used to smoke marijuana, the other methamphetamine.

When the officers searched the car, Officer Cuellar located a bubble-wrap package between the seat and the middle armrest. The package contained methamphetamine.1 Officers Hoy and Cuellar did not know who placed the methamphetamine in the car. The police determined that Curtis Welch was the registered owner of the car.

Crime scene investigator Frank Deniz examined the bindles for fingerprints but did not find prints that had sufficient evidentiary value.

Counts 1-7, Multiple Offenses, January 15, 2005
On Saturday, January 15, 2005 around 7:50 p.m., University of California, Santa Cruz Police Officer Brian Hughes was in the area of King and Bay streets. This area is a residential neighborhood with a speed limit of 25 miles per hour. A stoplight controls the flow of traffic. Officer Hughes was in uniform and in a marked police car. Officer Hughes heard a car approach from behind him. He saw a white Honda, going approximately 40 miles per hour. When the stoplight turned green, the Honda cut between Officer Hughes's patrol car, missing it by less than a foot, and a green Cadillac. The Honda pulled into the right-turn lane, but proceeded straight across the intersection. This caused the Cadillac's driver to slam on his brakes to avoid a collision.

Officer Hughes activated his vehicle's overhead red and blue emergency lights. He pursued the Honda as it went down King Street at speeds between 40 and 45 miles per hour. The posted speed limit was 25 miles per hour. The Honda failed to stop at a stop sign. Then, the Honda slowed, but did not stop at another stop sign. Eventually, the Honda turned right onto Miramar Drive. Officer Hughes followed and saw the Honda stopped in the middle of the road. He had lost sight of it for one to two seconds. Officer Hughes stopped approximately 10 feet behind the Honda. The emergency lights on his patrol car remained on.

Officer Hughes saw a driver, a passenger in the front passenger seat, and a dog in the back seat of the Honda. The driver, who Officer Hughes subsequently identified as appellant, started to get out the driver's side of the Honda. Officer Hughes yelled, "Police. Stop. Hold it right there." Appellant still had his right foot on the brake. He looked at Officer Hughes, and took his foot off the brake, allowing the car to roll backwards and hit Officer Hughes's car.

Appellant ran. He staggered and stumbled. At one point, he had to put both his hands down in order to regain his balance. Officer Hughes notified the police dispatcher of his location and that he was in foot pursuit. Officer Hughes yelled, "Police. Stop. Get on the ground." Appellant continued to flee.

Appellant stopped in the driveway of a house approximately six feet in front of Officer Hughes. Officer Hughes told appellant, "Get on the ground. Put your hands behind your back." Appellant did not comply. Appellant put his hands up, holding his fists in a threatening manner, and according to Officer Hughes, yelled in a demanding, desperate tone, "What did I do?" Officer Hughes told appellant, "Get down on the ground. Put your hands behind your back." Appellant did not comply. Remaining in the same threatening posture, appellant yelled, "What did I do?" Appellant took a step towards Officer Hughes. Officer Hughes thought appellant intended to attack him. As a result, Officer Hughes "pretty much put [his] left hand up, caught [appellant's] left hand and held it as [he] reached around with [his] right hand . . . to come around [appellant's] back to put him a bear hug . . . ."

Officer Hughes got appellant to the ground. He was on appellant's back with his hands around appellant. Appellant was on his hands and knees. Officer Hughes wanted to "find out what [was] going on with [appellant]. He was out of control." At this point, Officer Hughes was unable to get appellant's hand behind his back. Appellant "fought . . . the whole time."

Officer Hughes hit appellant above his right elbow with a flashlight. Officer Hughes struck appellant "to get compliance." He was trying to get appellant to listen, so that he could handcuff appellant. Officer Hughes explained that his use of his hands was not working because appellant "was resisting and fighting."

Officer Hughes explained, "I had to step up my use of force." The one blow with the flashlight had "no effect on [appellant] whatsoever." While appellant was struggling, appellant said, "I wasn't driving. I was in the passenger seat. I switched places with the driver." Officer Hughes told the jury that appellant did not have time to switch places.

Appellant continued to resist, knocking the flashlight from Officer Hughes's hand. Appellant "was still on the ground on his hands and knees and [Officer Hughes] was on top of him on his back still trying to grab his arms and legs." As appellant continued to resist, Officer Hughes yelled at appellant from "probably less than a foot from [appellant's] ear" that he was going to use pepper spray if appellant kept resisting. Officer Hughes pulled out his pepper spray, grabbed appellant's "hair on the back of [appellant's] head with [his] left hand and . . . pepper sprayed [appellant]," from approximately one to one and one-half feet away.

Appellant, who was still on his hands and knees, "grabbed the pepper spray with both hands, rolled over onto his back." Appellant said, "You pussy. You need a crutch to fight." Officer Hughes and appellant struggled over the pepper spray canister. During the struggle, Officer Hughes's radio microphone, which had been attached to his shirt, was pulled off. Officer Hughes heard his dispatcher ask for his location because "she didn't know where [he] was and no one was coming." Officer Hughes told his dispatcher where he was and to send help "Code 3 . . . , which means send as much [as] you can, lights and siren." As the struggle continued, appellant hit Officer Hughes, which caused Officer Hughes to punch appellant in the mouth. Appellant let go of the pepper spray can.

Officer Hughes explained that appellant "started reaching up on [his] duty belt, [his] gun belt. [Appellant] started reaching up and grabbing everything on [his] gun belt, every compartment." Officer Hughes was concerned that appellant might grab his gun and tried to prevent appellant from so doing.

Officer Hughes explained, "[Appellant] eventually grabbed the pepper spray [can] with one hand and then his other arm -- as he is laying [sic] on his back and I'm straddled pretty much kneeling over him he reaches down between my legs and punches me twice in the testicles." The blow was "very painful." Then, appellant "grabbed a hold of [Officer Hughes's] testicles, squeezed them, twisted them and drove them, just pushing them and driving them up into [Officer Hughes]." This caused "a wave of pain so bad [Officer Hughes] thought [he] could possibly black out." Eventually, appellant let go of Officer Hughes's testicles, "scooted out" from under Officer Hughes, and ran in the direction of the cars.

After appellant broke free, Officer Hughes did not see where appellant went other than in the general direction of their cars. Officer Hughes ran in that direction. He lost sight of appellant. He saw Santa Cruz Police Officer Teaford. Then, Officer Hughes saw appellant come out from a hedge. Appellant looked at Officer Teaford and stopped. Officer Teaford told appellant to "get down. To stop." Then, he began to run again. Officer Hughes approached appellant from the rear, again placing him in bear hug. Officer Hughes explained, "I picked him up and just threw him to the side towards the ground." As Officer Hughes did so, his left knee twisted and he felt a "pop." Appellant fell to ground, but continued to resist. Officer Hughes explained, "Well, once [appellant] was on the ground[,] I put my left arm around his neck and held his neck and shoulders down while Officer Teaford got a hold of one of his hands, got it handcuffed and [appellant] was keeping his other hand underneath him and wouldn't give it up."

Eventually, Officers Hughes and Teaford were able to place appellant in handcuffs. Appellant said, "I wasn't driving. The driver ran off." Officer Hughes smelled alcohol on appellant's breath and noted that his speech was slurred. Based upon appellant's driving, his staggering, the smell of alcohol, and slurred speech, Officer Hughes concluded appellant had been driving while under the influence of alcohol.

Appellant was approximately five feet, eight inches tall and weighed slightly more than 180 pounds. Officer Hughes was five feet 10 inches tall and weighted between 165 and 170 pounds. As soon as the officers handcuffed appellant, Officer Hughes told Officer Teaford that he had to get up and walk because he had hurt his knee. As he did so, he noted that it was swollen and "very sore."

Later that evening, Officer Hughes had another officer drive him to the hospital. Officer Hughes was given "Vicodin, crutches and a soft leg sprint that pretty much [ran] from [his] thigh to [his] ankle and [was told that his knee] was so swollen and sore they couldn't really diagnos[e] it other than a knee sprain." He sustained abrasions on his arms, knees, and hands. Officer Hughes mentioned the injury to his testicles, which remained sore and swollen for "at least a week."

Several days later Officer Hughes saw another doctor who prescribed physical therapy for the knee injury. He did as directed, but two weeks later his knee was still swollen. Officer Hughes consulted an orthopedic surgeon, who performed surgery on his knee, on April 29, 2005. He suffered a torn anterior cruciate ligament and lateral meniscus tear. The surgeon explained that recovery time is somewhat lengthy and the injury subjected Officer Hughes to an increased risk of arthritis. The surgeon explained that throwing someone to the ground could be enough force to damage an earlier repair.2

Officer Cecena and Sergeant Tony Parker searched the Honda. Sergeant Parker found a partially empty can of Coke between the center console and the driver's seat. Using tweezers, Officer Cecena pulled a plastic bag containing a partially saturated white substance from the can. Sergeant Parker and Officer Cecena did not know how long the bag was in the can, or who put it there. The police found a prescription bottle on appellant, which contained marijuana. Genevra Migliore was determined to be the registered owner of the Honda.

While at the hospital with Officer Hughes, Officer Robinson saw appellant on a gurney. Appellant smelled of alcohol. Accordingly, Officer Robinson ordered a blood test. Appellant became agitated and initially refused to submit to the blood draw. Eventually, Officer Robinson obtained some of appellant's blood at 11:44 p.m.

Criminalist Scott Armstrong testified as an expert on forensic alcohol testing and the effects of alcohol and its relationship to the ability to drive. He determined appellant's blood alcohol was .09 at the point the sample was taken. He estimated appellant's blood alcohol level would have been .17 four hours earlier when appellant was driving. He testified that a person with a blood alcohol level of .08 exhibits impaired judgment, delayed decision-making, decreased visual acuity, decreased reaction time and decreased ability to multitask while driving. In addition, he explained that persons under the influence might have red or watery eyes, stagger when walking, respond to questions more slowly, their driving patterns could include speeding and a failure to follow marked signs and turn lanes.

Defense Case

Dr. Terry Labid saw appellant at the hospital on January 13, 2005. Appellant had a broken rib. Dr. Labid prescribed Vicodin and told appellant not to take Vicodin with alcohol and not to drive.

Jesse Reynaga, appellant's brother, saw appellant on January 16, 2005. Appellant had scratches on his elbows and arms and nail marks on his back. On January 15, 2005, appellant's brother had not seen any injuries.

Kenneth Barnes, a former police officer, and professor of Administration of Justice at Arizona Western College, testified for the defense. He testified as an expert in police practices, jail practices, police pursuits and the use of force.

Barnes examined the policies on the use of force of the University of California at Santa Cruz. He explained that the university's policy uses a continuum of force that depends on the amount of resistance that the suspect exhibits.

Barnes opined that Officer Hughes had the right to chase appellant. However, in his opinion, Officer Hughes became aggressive when he cornered appellant. According to Barnes, Officer Hughes failed to tell appellant why he was being arrested, failed to attempt to calm appellant down, and failed to take out or display his nightstick before he tackled appellant. Once Officer Hughes grabbed appellant, the only tool Officer Hughes had left was to fight. Barnes believed that Officer Hughes should have grabbed appellant's hand and twisted it rather than using a bear hug. In Barnes's estimation, Officer Hughes used excessive force when he tackled appellant.

Barnes conceded that appellant did not stop when Officer Hughes activated his lights, and that appellant ran and failed to comply when Officer Hughes told him to get down. However, Barnes told the jury that Officer Hughes should not have tackled appellant and Officer Hughes was the aggressor.

Rebuttal

Santa Cruz Deputy Sheriff Frank Eryavec testified as an expert in compliance techniques. He explained to the jury that use of force involves a continuum. When a person is cooperative, the officer uses his professional presence and verbalization to restrain and detain. When a subject goes limp or fails to comply with instructions, an officer may lift the subject or use a pain compliance technique. When there is active resistance or "assaultive" behavior, an officer may employ force, short of deadly force, including pepper spray, striking implements or carotid compression holds. When a person threatens the life of the officer or another, an officer may employ deadly force. Deputy Sheriff Eryavec explained that the amount of force used might be influenced by whether the officer is alone and whether help is coming. In this case, appellant's driving behavior was aggressive, and appellant left the car and allowed it to roll into the officer's car. Once appellant ran into an alley and became aggressive, Officer Hughes no longer was obligated to answer appellant's questions because Officer Hughes was in hot pursuit. Under these circumstances, Officer Hughes could have used pepper spray and his baton. Deputy Sheriff Eryavec explained that it was reasonable for Officer Hughes to tackle appellant, use his flashlight, and punch appellant in the mouth. In Deputy Sheriff Eryavec's opinion, once appellant grabbed Officer Hughes's testicles and reached for his duty belt. Officer Hughes would have been justified in using deadly force.

Discussion
I. Motion for Mistrial
Background

On July 29, 2003, the court conducted jury selection. Although the voir dire was reported, initially, it was not transcribed. After the court excused the jury for the day, defense counsel made a motion for a mistrial. Specifically, defense counsel explained the basis for the mistrial as follows: "[DEFENSE COUNSEL]: Yes. Thank you. Yes, Your Honor. As the Court where he dealt with side bar, Ms. - - indicated or presented before the jury that there were discussions by Ms. Migliore who was described as [appellant's] girlfriend out in the hallway with the nursing infant. And I think we all know what Ms. Migliore said regarding about the daddy taking a deal. And Ms. [juror name redacted] then blurted this out before the entire jury panel. And then it was basically hushed over, and then we had a side bar discussion. At side bar I indicated that I thought it needed to be addressed. Court indicated he would need to addressed [sic] it later. At this point I would ask the Court to mistry the case because I believe that would impact jurors in their determination as to whether Mr. Reynaga was in fact worthy of his presumption of innocence and issues regarding his culpability for any of his offenses."

The prosecutor characterized the incident as a "minor inadvertent slip." The prosecutor noted that the statement "wasn't really taken into context with what meaning that statement would have had to the other jurors. Certainly, she didn't say that in a voice as loud as myself or [defense counsel]. I doubt if even the bulk of the jurors heard it. Certainly there wasn't any type of a reaction that I saw from any of the jurors sitting around her or anywhere else in the courtroom when she made the particular statement."

The court indicated that it was "disturbed" by the incident. However, the court went on to note the following: "I had difficulty at first understanding what she said because it appeared to have come out just as -- it was nonresponsive to what she was talking about. It was almost something she was waiting to blurt out as opposed to it came out at the end of an answer to a question. It was totally nonresponsive to the question. I had difficulty with -- it had something to do with substance abuse I think I was asking her about, and this came out."

The court explained to defense counsel and the defendant that although it was "unfortunate that somebody [said] that, that cuts both ways. It also can suggest to someone who is paying attention that the People have a position of compromise in the case, that a deal has been offered, so that it cuts both ways. And I don't think in the particular context when this came out, and part of it was the demeanor, she was very soft spoken, that I just don't think it had the effect that it might have had in another context, just the words she uttered. I just don't think it's a sufficient basis for the Court to grant the motion, and I'm going to deny the motion."

Defense counsel indicted that she wanted to make a record. Defense counsel noted that at the time prospective juror No. 18 made the statement, she "notice[d] several jurors actually raise their eyebrows, kind of stiffen, and/or take a look at her direction and/or [the prosecutor's] and mine particularly."

The court replied that it was "not saying people did not hear it. I'm not joining in that. I'm not sure people heard the words uttered. I do not believe in that context it has a dramatic effect as it might otherwise have had, and I think the actual words she uttered and in the context it was said, because it really was sort of nonresponsive and could cut either way in this case in terms of what was being proposed. [¶] All right. In any case, the motion is denied."

To begin with, we note that the record was insufficient for this court to address this issue. Accordingly, on this court's own motion we ordered that the record be augmented with the reporter's transcript of the voir dire. (Cal. Rules of Court, rule 8.761.)

During the court's questioning of prospective juror No. 18, who was in the jury box with other prospective jurors, the following exchange took place.

"THE COURT: . . . Is there anything about the fact that you dislike substance abuse that causes you to believe that you can't be fair and impartial?

PROSPECTIVE JUROR #18: I'm in a relationship with someone who has the same issue. And I believe I met his --sitting out there, I met a woman who was talking to her baby about maybe daddy will take a deal and these people are here for daddy; just sitting outside.

THE COURT: Oh, I see. You lost me for a minute. You're saying you overheard a conversation perhaps you shouldn't have overheard. Let me get back to you in a minute."

The court went on to address the prospective jurors concerning their perceptions of police officers in general.

Shortly thereafter, the court informed the prospective jurors that it had a supplemental list of witnesses that the court would read to them. The court read the following: "Genevera Migliori [sic], who happens to be the person that you were listening to outside."

After more questioning of prospective jurors, the court stated that it needed "to ask some questions of [name redacted] out of the presence of the other jurors." At a side bar conference, the following exchange took place.

"THE COURT: I think what happened is she just inadvertently heard a conversation out of the [sic].

THE COURT REPORTER: I'm sorry, I can't hear.

THE COURT: That it was to be Mr. Reynaga, and she was talking about something potentially -- what I need to ask you is just, is she speaking loud enough so a bunch of people heard?

PROSPECTIVE JUROR #18: Straight to her baby.

THE COURT: You just happened to be right there?

PROSPECTIVE JUROR #18: Yeah. Maybe the girl on the other side, but I don't think so."

The court excused prospective juror No. 18 for cause.

After the jury was impaneled, defense counsel made a motion for a mistrial as noted ante.

Appellant contends that his "judgment of conviction must be reversed because the jury inadvertently learned prior to deliberations that [he] took or attempted to take a deal." Appellant asserts, "the jury's inadvertent receipt of information regarding a deal offered to appellant raised a rebuttable presumption of misconduct. Because the statement could have permitted [the] jury to infer guilt before it heard any evidence in the present case, the receipt of the information was prejudicial and [his] judgment of conviction must be reversed."

Respondent concedes, as do we, that appellant has a right to an impartial jury, but argues that what happened here did not violate that right.3 We are not so convinced.

Essentially, the issue we must resolve is whether the receipt of the information that "maybe daddy will take a deal," was information obtained by the jurors that could have permitted the jury to infer guilt before it heard any evidence.

It is important to note that the court dismissed prospective juror No. 18 from the jury for cause. However, it is apparent from the record that she conveyed the information she received to the rest of the prospective jurors during voir dire; and the court made the rest of the prospective jurors aware that Ms. Migliore, the person who made the statement, was related to the case in which they were to be jurors.

"[A] juror's inadvertent receipt of information that had not been presented in court falls within the general category of 'juror misconduct.' " (People v. Nesler (1997) 16 Cal.4th 561, 579 (Nesler).)4

"Although inadvertent exposure to out-of-court information is not blameworthy conduct, as might be suggested by the term 'misconduct,' it nevertheless gives rise to a presumption of prejudice, because it poses the risk that one or more jurors may be influenced by material that the defendant has had no opportunity to confront, cross-examine, or rebut." (Nesler, supra, 16 Cal.4th at p. 579.) Thus, "[j]uror misconduct, such as the receipt of information about a party or the case that was not part of the evidence received at trial, leads to a presumption that the defendant was prejudiced thereby and may establish juror bias." (Id. at p. 578.)

In Nesler, supra, 16 Cal.4th 561, a plurality of the California court concluded that when a criminal defendant appeals the denial of his or her motion for a new trial on grounds of juror misconduct, this court must independently review, as a mixed question of law and fact, the trial court's conclusion that no prejudice arose from the misconduct. (Id. at p. 582, fn. 5, (lead opn. of George, C. J.).) "We accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.]" (Id. at p. 582.)

"We assess the effect of out-of-court information upon the jury in the following manner. When juror misconduct involves the receipt of information about a party or the case from extraneous sources, the verdict will be set aside only if there appears a substantial likelihood of juror bias. [Citation.] Such bias may appear in either of two ways: (1) if the extraneous material, judged objectively, is so prejudicial in and of itself that it is inherently and substantially likely to have influenced a juror; or (2) even if the information is not 'inherently' prejudicial, if, from the nature of the misconduct and the surrounding circumstances, the court determines that it is substantially likely a juror was 'actually biased' against the defendant. If we find a substantial likelihood that a juror was actually biased, we must set aside the verdict, no matter how convinced we might be that an unbiased jury would have reached the same verdict, because a biased adjudicator is one of the few structural trial defects that compel reversal without application of a harmless error standard. [Citation.]" (Nesler, supra, 16 Cal.4th at pp. 578-579, italics added.)

Respondent characterizes this issue as one of spectator misconduct. However, we view it as an outside influence that could have affected the jury's perception of guilt or innocence.

Although not specifically articulated in the Constitution, the presumption of innocence is an integral part of the right to a fair trial. (Estelle v. Williams (1976) 425 U.S. 501, 503 [96 S.Ct. 1691].)

The logical inference of the information that "maybe daddy will take a deal" (hereinafter "the statement") is that appellant was not innocent of the charges and could settle the case before trial. Thus, the statement eroded the presumption of innocence before any evidence was presented. Judging the statement objectively, it is so prejudicial in and of itself that it is inherently and substantially likely to have influenced the jurors. Even though the court below instructed the jury that in a criminal action a defendant is presumed innocent, at least some of the jurors were aware after the statement that that was not be the case—something that would be difficult if not impossible to erase from memory.

"Under California law, if a juror's partiality would have constituted grounds for a challenge for cause during jury selection . . . but the juror's concealment of such a state of mind is not discovered until after trial and verdict, the juror's actual bias constitutes misconduct that warrants a new trial under Penal Code section 1181 . . . ." (Nesler, supra, 16 Cal.4th at p. 581.)

Here, however, although prospective juror No. 18 did not conceal anything about her receipt of information, on recognizing the potential for juror bias in this case, the court dismissed her for cause. Thus, implicitly the court concluded, as do we, that prospective juror No. 18 could not be impartial because she overheard the statement. Nevertheless, the court did not dismiss the rest of the prospective jurors, even though the court was aware that they "heard the words uttered" by prospective juror No. 18.

Respondent argues that it was unclear the prospective jurors heard the words uttered. The record belies such a conclusion. First, prospective juror No. 18's statement was loud enough for the court reporter to hear and record it. Second, defense counsel noted that she "happened to be looking at [prospective juror No. 18], and at the time she made that statement, and I did notice several jurors actually . . . stiffen, and/or take a look at her direction, and/or [the prosecutor's] and mine, particularly."

The only finding pertaining to the remaining jurors' impartiality that the court made was that it "cuts both ways. It also can suggest to someone who is paying attention that the People have a position of compromise in the case; that a deal has been offered." This conclusion would be acceptable if the information that the jurors received was that "daddy was offered a deal." That was not the information that the prospective jurors received.

Since Judge Stevens dismissed prospective juror No. 18 for cause, he must have concluded that prospective juror No. 18's impartiality was affected by hearing the statement. Accordingly, we find it to be unreasonable that he could conclude that the rest of the jurors were not inherently and substantially likely to have been influenced by the statement as well. Prospective juror No. 18 relayed the statement to them, the court told the remaining jurors that Ms. Migliore was related to the case, and the prospective jurors heard the statement.5

We cannot say how many of the prospective jurors seated in the box were on the final jury that was impaneled. However, even if we were to assume for the sake of argument that only the original 18 prospective jurors in the box heard the statement, it appears that at least three or four of the original 18 made it to the final panel. Given that a defendant charged with crime has a right to the unanimous verdict of 12 impartial jurors, it is settled that a conviction cannot stand if even a single juror has been improperly influenced. (In re Carpenter (1995) 9 Cal.4th 634.)

Since we have concluded that there appears to be a substantial likelihood of juror bias, appellant was deprived of his right to a unanimous verdict of 12 impartial jurors. Thus, the trial court erred in denying his motion for a mistrial. (Nesler, supra, 16 Cal.4th at p. 590.)

Given that the judgment must be reversed, it is not necessary to address appellant's remaining contentions other than those relating to claims of insufficient evidence to support the verdicts. (People v. Pierce (1979) 24 Cal.3d 199, 209-210.)

II. Sufficiency of Evidence that Appellant was the Proximate Cause

of Officer Hughes's Injuries

Appellant was charged in count two with resisting a police officer and causing serious bodily injury. (Pen. Code, § 148.10.) The charge stemmed from the incident with Officer Hughes during which Officer Hughes twisted his knee and tore his anterior cruciate ligament.

Appellant contends that his conviction on count two must be reversed because the evidence was insufficient to support a finding that he was the proximate cause of the injury to Officer Hughes's knee.

Penal Code section 148.10 states in pertinent part: " (a) Every person who willfully resists a peace officer in the discharge or attempt to discharge any duty of his or her office or employment and whose willful resistance proximately causes death or serious bodily injury to a peace officer shall be punished by imprisonment in the state prison for two, three, or four years, or by a fine of not less than one thousand dollars ($1,000) or more than ten thousand dollars ($10,000), or by both that fine and imprisonment, or by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment."

The court instructed the jury with CALJIC No. 3.40 that appellant's act had to cause the injury. The court continued by explaining to the jury that the "criminal law has it's [sic] own particular way of defining cause. A cause of the torn ligament is an act that sets in motion a chain of events that produces a direct, natural, and probable consequence of the act - - a cause of the torn ligament is an act that sets in motion a chain of events that produces a direct, natural, and probable consequence of the act, a torn ligament, and without which a torn ligament would not occur."

Thereafter, the court instructed the jury with CALJIC No. 3.41 as follows. "There may be more than one cause of the torn knee ligament. When the conduct of two or more persons contributes concurrently as a cause of the torn ligament, the conduct of each is a cause of the torn ligament if that conduct was also a substantial factor contributing to the result. [¶] A cause is concurrent if it was operative at the moment of the torn ligament and acted with another cause to produce the torn ligament. [¶] If you find that the defendant's conduct was a cause of the torn ligament to, in this case, Officer Hughes, then it is no defense that the conduct of some other person, even the injured person, contributed to the torn ligament."

In a challenge to the sufficiency of the evidence on appeal, "we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Snow (2003) 30 Cal.4th 43, 66.) We must " ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' [Citation.]" (People v. Rayford (1994) 9 Cal.4th 1, 23.)

Furthermore, "it is not within our province to reweigh the evidence or redetermine issues of credibility. [Citation.]" (People v. Martinez (2003) 113 Cal.App.4th 400, 412.) Moreover, "all conflicts in the evidence . . . must be resolved in favor of the judgment. [Citations.]" (People v. Mitchell (1986) 183 Cal.App.3d 325, 329.) "Reversal . . . is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) Even if we believe the evidence might also reasonably be reconciled with the innocence of the defendant, this view "does not warrant interference with the determination of the trier of fact." (People v. Towler (1982) 31 Cal.3d. 105, 118.)6

Appellant argues that the concept of proximate cause is used to distinguish between injuries for which a defendant will be held responsible and those for which the defendant will escape culpability. Proximate cause may be satisfied by a showing of actual or but for causation. We do not disagree with appellant.

"In general, '[p]roximate cause is clearly established where the act is directly connected with the resulting injury, with no intervening force operating.' (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 36, p. 242.)" (People v. Cervantes (2001) 26 Cal.4th 860, 866 (Cervantes).)

Appellant argues, however, that in this case his running from Officer Hughes was not the actual cause of Officer Hughes's injury. Rather, the injury was caused by Officer Hughes's decision to tackle him even though the officer had previously injured his knee and Officer Teaford was in the area.

We disagree. Appellant conveniently forgets that he began violating Penal Code section 148.10 as soon as he started running and continued until Officers Hughes and Teaford finally subdued him. (People v. Superior Court (Ferguson) (2005) 132 Cal.App.4th 1525, 1535, ["not only is flight from lawful arrest encompassed within the usual and ordinary meaning of 'willful resistance,' but it is also consistent with the intent of the Legislature to permit prosecution under section 148.10 for flight resulting in death or serious bodily injury to the pursuing officer"].) In short, appellant's flight put in motion the chase that ultimately led to Officer Hughes's injury. To put it another way, but for appellant's flight, Officer Hughes would not have needed to chase him and would not have injured his knee in the course of arresting him.

Appellant's attempt to argue that his role, though direct, was an insubstantial cause of the injury or that there was an unforeseeable, independent, intervening cause is unavailing.

" 'In general, an "independent" intervening cause will absolve a defendant of criminal liability. (1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) § 131, p. 149.) However, in order to be "independent" the intervening cause must be "unforeseeable . . . an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause." [Citation.] On the other hand, a "dependent" intervening cause will not relieve the defendant of criminal liability. "A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is 'dependent' and not a superseding cause, and will not relieve defendant of liability. [Citation.] '[ ] The consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. [ ] The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act.' [Citation.]" [Citation.]' . . ." (Cervantes, supra, 26 Cal.4th at p. 871.)7

Here, Officer Hughes's injury was not the result of an "extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause." (Cervantes, supra, 26 Cal.4th at p. 870.) The officer's injuries were directly caused by appellant's act of fleeing the officer.

Finally, we are not persuaded by appellant's claim that Officer Hughes's injury was not a reasonably foreseeable consequence of his flight. It was reasonably foreseeable that appellant's illegal conduct would lead to the police chase. Given the nature of the chase, it was reasonably foreseeable that an officer might suffer injuries. Police often chase subjects and are injured in the course of so doing. In fact, the sponsor of Senate Bill 2172, which added section 148.10 to the Penal Code in 1990, stated that he was sponsoring the bill in response to an incident in which a San Francisco police officer was killed while trying to apprehend a fleeing suspect on foot. (Quentin Kopp, Letter to Governor Deukmejian, August 24, 1990.)

Appellant's assertion that it was unforeseeable that Officer Hughes would tackle him after he called for backup and saw Officer Teaford in the street does not persuade us otherwise. At the moment appellant broke through the hedge, he may have stopped for a moment. However, according to Officer Teaford, appellant ignored his command to get down on the ground and started to run. Appellant cannot obtain exoneration by maintaining that Officer Hughes should have reacted differently or more prudently. (People v. Armitage (1987) 194 Cal.App.3d 405, 421.)

In sum, there was substantial evidence that appellant was the proximate cause of Officer Hughes's knee injury.

III. Lawful Arrest

Appellant claims that his convictions on counts one and two must be reversed because there was insufficient evidence to show the statutory element of a lawful arrest.

Appellant claims that his arrest was invalid "because [Officer] Hughes'[s] failure to respond to [his] questions regarding why he was being arrested, violated Penal Code section 841."

Initially, we note that both Penal Code section 148.10 and Penal Code section 242 require the prosecution prove that the officer was acting lawfully at the time these offenses were committed. (Pen. Code, § 148.10, [the trier of fact must find the following facts . . ."[t]hat the detention and arrest was lawful]"; Pen. Code, § 243 ["[w]hen a battery is committed against the person of a peace officer . . . engaged in the performance of his or her duties"].) " 'The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in "duties" for purposes of an offense defined in such terms, if the officer's conduct is unlawful . . . .' [Citation.]" (In re Manuel G. (1997) 16 Cal.4th 805, 815.)

Relying on People v. Castain (1981) 122 Cal.App.3d 138 (Castain), essentially, appellant contends that his arrest was illegal because he was not informed of the reason for his arrest when he asked Officer Hughes, twice, "What did I do?"

In Castain, the defendant was convicted of battery on a peace officer and resisting arrest. (Castain, supra, 122 Cal.App.3d at pp. 140-141.) The trial court excluded testimony of witnesses who claimed the officer had used excessive force on other occasions. (Id. at p. 142.) The Fourth District Court of Appeal reversed, reasoning that the evidence was relevant to show the officer had a propensity to use excessive force against citizens he arrested or detained and, by inference, had acted " 'in character' " during his confrontation with the defendant. (Id. at p. 143.) Although the Court of Appeal reversed Castain's conviction because the trial court erroneously excluded evidence, in so doing, the court instructed the trial court to give CALJIC No. 9.548 on retrial regarding the officer's obligation to tell an arrestee on request, why he or she is being arrested. (Id. at p. 145.)

Penal Code section 841 states: "The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, except when the person making the arrest has reasonable cause to believe that the person to be arrested is actually engaged in the commission of or an attempt to commit an offense, or the person to be arrested is pursued immediately after its commission, or after an escape. [¶] The person making the arrest must, on request of the person he is arresting, inform the latter of the offense for which he is being arrested."

When there is an appreciable lapse in time such that the person arrested would not necessarily be familiar with the circumstances justifying the arrest, Penal Code section 841 requires a formal advisement. (Johanson v. Department of Motor Vehicles (1995) 36 Cal.App.4th 1209, 1218.) It is well settled, however, that strict compliance with section 841 is not required in other circumstances. (People v. Braun (1973) 29 Cal.App.3d 949, 969, disapproved on other grounds by People v. Green (1980) 27 Cal.3d 1, 25, fn. 10; People v. Hammond (1960) 54 Cal.2d 846, 854 [compliance with Penal Code section 841 was not required as the defendant was then engaged in the commission of an offense].)

Appellant was engaged in the commission of an offense, i.e., willfully resisting a police officer in the performance of his duty. Accordingly, compliance with the strictures of Penal Code section 841 was not required. (People v. Beard (1956) 46 Cal.2d 278, 281; People v. Herman (1958) 163 Cal.App.2d 821, 826.)

Accordingly, we reject appellant's contention that there was insufficient evidence to show the statutory element of a lawful arrest.

IV. Injury to Officer Hughes
Based on the injury to Officer Hughes's testicles, the jury convicted appellant of a violation of Penal Code section 243, subdivision (c).9 Relying on In re Michael P. (1996) 50 Cal.App.4th 1525 and People v. Longoria (1995) 34 Cal.App.4th 12, appellant asserts that this conviction cannot stand because the evidence was insufficient to support a finding that Officer Hughes's injury required medical attention.

Subdivision (f)(5) of Penal Code section 243 defines injury as "any physical injury which requires professional medical treatment."

In In re Michael P., supra, 50 Cal.App.4th 1525, upon which appellant relies as being similar to the present case, a minor was found to have committed battery with injury on a peace officer—an employee of the probation department. (Id. at p. 1527.) The officer testified that while he was driving a bus transporting the minor and other wards to a juvenile facility, the minor got out of his seat and kicked the officer in the chest and chin. (Id. at pp. 1527-1528.) The officer did not report the injuries to the medical staff nor did he seek medical treatment. No photographs of the injuries were taken and he suffered no bruises. (Id. at p. 1528.) The court found that the officer's failure to describe his injuries beyond being sore was "fatal" to a finding that he suffered injury within the meaning of Penal Code section 243, subdivision (c).

In People v. Longoria, supra, 34 Cal.App.4th 12 (Longoria), the Second District Court of Appeal held that the determinative factor is the seriousness of the injury, not whether the officer sought or received medical treatment. (Id. at p. 17.) In Longoria, a handcuffed suspect kicked an officer in the groin, causing him to fall to his knees. The suspect fell on top of the officer, pinning his hand between the handcuffs and the floor. As a result, the officer sustained cuts on his fingers and the bottom side of his right hand. After the arrest, the officer visited a hospital and his hand was x-rayed. There were no broken bones. However, the officer could not hold his firearm and was placed on restrictive phone duty for several days. The defendant argued that the kick to the groin and cuts to the officer's hand were not injuries because medical treatment was neither required nor given. (Ibid.) The reviewing court held that the dispositive factor was not whether the officer received medical treatment, but whether treatment was required for his injury. (Ibid.)

"It is the nature, extent, and seriousness of the injury-not the inclination or disinclination of the victim to seek medical treatment-which is determinative. A peace officer who obtains 'medical treatment' when none is required, has not sustained an 'injury' within the meaning of section 243, subdivision (c). And a peace officer who does not obtain 'medical treatment' when such treatment is required, has sustained an 'injury' within the meaning of section 243, subdivision (c). The test is objective and factual." (Longoria, supra, 34 Cal.App.4th at p. 17, fn. omitted.)

Here, a reasonable jury could conclude that the injury to Officer Hughes was severe enough to require professional medical treatment. Officer Hughes testified that he nearly "black[e]d out" and that his testicles were sore and swollen for a week. Nevertheless, appellant argues that although Officer Hughes told the physician about his groin injury, the doctor apparently did not deem the injury worthy of treatment. This is pure speculation on the part of appellant. Officer Hughes testified that he was prescribed Vicodin. A reasonable jury could conclude that the Vicodin would take care of the soreness to Officer Hughes's testicles as well as the pain to his knee.

In sum, we find there was sufficient evidence from which a reasonable jury could find that appellant inflicted "injury" on Officer Hughes.

V. On-Bail Enhancement

Finally, appellant raises a claim of sentencing error, which we would not normally address because the case is being remanded for a retrial. However, appellant couches the issue as one of insufficient evidence to support "one on-bail enhancement" He argues that there is insufficient evidence to support an on-bail enhancement because he was not convicted of a felony in case No. F09717 as the prosecutor dismissed the charges in that case. After reviewing the record, we find that the jury did not make a finding that appellant was on bail in case No. F09717 when he committed the offenses charged in case No. F09677.

The record shows the following, which we outline for the trial court to avoid any confusion on retrial. A complaint in case No. F09677 charged appellant with five offenses occurring on June 17, 2004, involving Santa Cruz Police Officer Holly Hoy. Count one charged possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)); count two charged receiving stolen property (Pen. Code, § 496, subd. (a)); count three charged possession of injection/ingestion device ) (Health & Saf. Code, § 11364); count four charged giving false information to a police officer (Pen Code, § 148.9, subd. (a)); and count five charged driving on a suspended license (Veh. Code, § 14601.2, subd. (a)).

The preliminary hearing in case No. F09677 was held on July 19, 2004. Subsequently, an information in case No. F09677 was filed on July 22, 2004, charging the same offenses that occurred on June 17, 2004, and added two misdemeanor charges of driving on a suspended license on or about June 1, 2003, and driving on a suspended license on or about April 14, 2004.

A complaint in case No. F09717 charged appellant with various offenses involving domestic violence against Mary Reynaga.

An amended complaint in case No. F10827, filed on February 22, 2005, charged appellant with the offenses occurring on January 15, 2005 involving Officer Hughes. An information was filed March 7, 2005, in case No. F10827. Count one charged appellant with battery with injury on a peace officer (Pen. Code, § 243, subd. (c)(2)); count two charged resisting a police officer with serious bodily injury (Pen. Code, § 148.10); count three, possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); count four, driving under the influence of drugs or alcohol (Veh. Code, § 23152, subd. (a)); count five, driving with a blood alcohol level of .08 (Veh. Code, § 23152, subd. (b)); count six, driving with a suspended license (Veh. Code, § 14601.2, subd. (a)); and count seven, resisting a police officer (Pen. Code, § 148, subd. (a)(1)). As to counts one through three, the information alleged two on-bail enhancements. Specifically, the information alleged that appellant was released from custody in case No. F09717 (the domestic violence case) and case No. F09677 (the offenses involving Officer Hoy) when he committed the aforementioned offenses.

On March 9, 2005, the court consolidated case No. F09677 (involving Officer Hoy) with case No. F10827 (involving Officer Hughes) under one case No. F09677. The amended information filed under the F09677 case number on July 7, 2005, charged appellant with the crimes originally alleged in the separate informations—F09677 and F10827—except that the receiving stolen property charge does not appear in the amended information.10

The amended information specified that when appellant committed the offenses on January 15, 2005, counts one through three involving Officer Hughes, he was released on bail on his own recognizance in case Nos. F10827 (involving Officer Hughes)11 and F09717 (the domestic violence case). Each on-bail enhancement was alleged separately as to each of the three counts. That is, the amended information F09677 alleged two on-bail enhancements as to each count.

However, the verdict forms contained only one on-bail enhancement as to each count. Specifically, the verdict forms provided the following. "We the jury in the above-entitled case, having found the defendant guilty of . . . , find the special allegation that the defendant COMMITTED THE OFFENSE WHILE OUT ON HIS OWN RECOGNIZANCE on case number F09677, within the meaning of PENAL Code section 12022.1 to be ______________ [¶] TRUE/NOT TRUE"

There is nothing in the record to indicate why the verdict forms were prepared this way, nor discussion as to why the verdict forms contained only one on-bail enhancement—the original case No. F09677 involving Officer Hoy —and eliminated the on-bail enhancement based on case No. F09717. The effect of the change was that the jury was asked to make a finding as to only one on-bail enhancement, not two.

After the jury verdicts, the court conducted a trial on appellant's two prior convictions. Thereafter, the prosecutor moved to dismiss the domestic violence case No. F09717. The court dismissed that case in this interest of justice.

The prosecutor's sentencing memorandum stated that one section 12022.1 on-bail enhancement was applicable. In sentencing appellant, the court imposed only one on-bail enhancement for count one and only one on-bail enhancement for count two.

Accordingly, as to counts one and two appellant was convicted of only one on-bail enhancement attached to each count. He was not convicted of an on-bail enhancement related to case No. F09717.

Disposition
The judgment is reversed. The matter is remanded to the trial court for a new trial.

_____________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.



1 It appears that the package contained two small wrapped packages of powder. Only one of the packages was weighed and determined to contain .21 grams. The other package was not weighed.



2 Officer Hughes had a previous successful ACL repair in 1991.



3 A defendant accused of a crime has a constitutional right to a trial by unbiased, impartial jurors. (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16; Irvin v. Dowd (1961) 366 U.S. 717, 722 [81 S.Ct. 1639]; In re Hitchings (1993) 6 Cal.4th 97, 110.)



4 In Nesler, during the sanity phase of the trial, a juror engaged in misconduct by sitting in a bar while a woman revealed damaging information about the defendant for half an hour. The juror did not identify herself as a juror and did not leave. She did not disclose the outside information or its source to the trial court. Instead, the juror violated her oath and disregarded the trial court's instructions by revealing the information to the other jurors. She used this information during deliberations to persuade the other jurors to change their views. (Nesler, supra, 16 Cal.4th at p. 579.) Our Supreme Court found the juror was actually biased and the presumption of prejudice that arose from her misconduct was not rebutted. (Id. at p. 589.)



5 At one point, the court concluded "the statement" did not have "the affect that it might have had in another context, just the words she uttered." Again, the record does not support this assertion. Defense counsel noted for the record that she was looking at the prospective jurors when "the statement" was relayed to the court and "notice[d] several jurors actually stiffen, and/or take a look at her direction, and/or [the prosecutor's] and mine, particularly." If the prospective jurors had not heard "the statement" or understood it in context, they would not have reacted as they did. Accordingly, we do not find substantial evidence to support the trial court's conclusion.



6 This standard of review is applicable to all appellant's claims of insufficiency of the evidence to support the verdicts.



7 In Cervantes, defendant and fellow gang members attended another gang's party. The gangs were not enemies. When a woman defendant knew declined to go elsewhere with defendant, he insulted her, and one of the other gang's members drew his gun and threatened defendant. Defendant drew his gun. In an attempt to defuse the situation, another of the other gang's members touched defendant; defendant then shot and injured him. A melee ensued. Shortly thereafter, a member of the gang holding the party was shot to death by one of defendant's fellow gang members. The defendant was convicted of that murder under a "provocative act" theory. The California Supreme Court held the evidence was insufficient as a matter of law to support the conviction because the essential element of proximate cause was not established. Defendant was not the initial aggressor in the incident that gave rise to the provocative act. There was no direct evidence the victim's unidentified murderers were even present at the scene of the provocative act. That is, in a position to actually witness defendant shoot the intervener, and defendant was not present at the scene where the victim was fatally shot. Accordingly, the Cervantes court concluded the fatal shooting was an independent intervening act. (Cervantes, supra, 26 Cal.4th at pp. 863-865, 872.)



8 That instruction is now CALJIC No. 16.105, which provides: "An arrest is made by an actual restraint of the person arrested or by [his] [her] submission to the custody of an officer. In making an arrest, the officer may subject the person being arrested to as much restraint as is reasonable for the arrest and detention. [¶] The officer must inform the person to be arrested of the intention to arrest [him] [her], of the cause of arrest, and the authority to make it. [¶] The officer need not so inform the person being arrested when the officer making the arrest has reasonable cause to believe that the person to be arrested is actually engaged in the commission or an attempt to commit [an infraction] [or] [a misdemeanor] [or] [a felony], or when the person to be arrested is pursued immediately after the commission of [an infraction] [or] [a misdemeanor] [or] [a felony], or after an escape. [¶] [The officer making the arrest must, on request of the person being arrested, inform the latter of the offense for which [he] [she] is being arrested.]"



9 Penal Code section 243 provides in pertinent part: "(c)(1) When a battery is committed against a custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, or animal control officer engaged in the performance of his or her duties, whether on or off duty, or a nonsworn employee of a probation department engaged in the performance of his or her duties, whether on or off duty, or a physician or nurse engaged in rendering emergency medical care outside a hospital, clinic, or other health care facility, and the person committing the offense knows or reasonably should know that the victim is a nonsworn employee of a probation department, custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, or animal control officer engaged in the performance of his or her duties, or a physician or nurse engaged in rendering emergency medical care, and an injury is inflicted on that victim, the battery is punishable by a fine of not more than two thousand dollars ($2,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by imprisonment in the state prison for 16 months, or two or three years. [¶] (2) When the battery specified in paragraph (1) is committed against a peace officer engaged in the performance of his or her duties, whether on or off duty, including when the peace officer is in a police uniform and is concurrently performing the duties required of him or her as a peace officer while also employed in a private capacity as a part-time or casual private security guard or patrolman and the person committing the offense knows or reasonably should know that the victim is a peace officer engaged in the performance of his or her duties, the battery is punishable by a fine of not more than ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year or in the state prison for 16 months, or two or three years, or by both that fine and imprisonment. [¶] (d) When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment in the state prison for two, three, or four years."



10 Further, the amended information changed some of the count designations.



11 This does not make sense. Effectively, the on-bail enhancement alleged that appellant committed the offenses in counts one through three against Officer Hughes when he was out on-bail in case No. F10827, which was the original case in which counts one through three were charged.