People v. Rivera CA1/1

Filed 9/24/20 P. v. Rivera CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,
A157315
v.
CLETO RANGEL RIVERA, (Napa County Super. Ct.
No. 18CR001031)
Defendant and Appellant.

Appellant Cleto Rangel Rivera appeals from a judgment of conviction
and sentence imposed after a jury found him guilty of resisting a peace officer
and causing serious bodily injury (Pen. Code,1 § 148.10, subd. (a)), and
several related counts. He contends the trial court’s failure to conduct an
investigation into whether one of the jurors fell asleep during trial violated
his rights to due process and to an impartial jury under the Fifth and Sixth
Amendments to the United States Constitution. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background
In April 2018, an information was filed charging appellant with
resisting a peace officer causing serious bodily injury (§ 148.10, subd. (a);

1 Unless otherwise indicated, all statutory references are to the Penal
Code.

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counts one and two), assault upon a peace officer (§ 245, subd. (c); counts
three and four), resisting an executive officer (§ 69; counts five and six), and
misdemeanor giving false information to a police officer (§ 148.9, subd. (a);
count seven). The information further alleged that appellant committed
these offenses while on bail (§ 12022.1) and that he personally inflicted great
bodily injury (§ 12022.7, subd. (a)). Appellant pleaded not guilty and denied
the allegations.
Two trials were conducted. In the first trial, a jury found appellant
guilty on the lesser included offense of resisting a peace officer (§ 148) as to
count two, and guilty on counts five, six, and seven. The jury was unable to
reach verdicts as to counts one, three, and four and the great bodily injury
special allegations, and a mistrial was declared. In a bifurcated court trial,
the court found the on-bail allegation to be true.
In April 2019, a second amended information was filed charging
appellant with resisting a peace officer causing serious bodily injury
(§ 148.10, subd. (a); count one), and assault on a peace officer (§ 245, subd. (c);
counts three and four). The information again alleged that appellant
committed the offenses while on bail (§ 12022.1) and that he personally
inflicted great bodily injury (§ 12022.7, subd. (a)). Appellant pleaded not
guilty.
B. The People’s Case
In March 2018, Napa Police Department Detective Garrett Wade and
Officer Eric Koford investigated a stolen truck. Appellant’s cell phone was
found in the vehicle. A records search revealed that appellant had five
outstanding arrest warrants. On March 20, 2018, Detective Wade sent out a
departmental “be-on-the-lookout” email with appellant’s photograph.

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 The following morning, Detective Wade observed Fernando Rodriguez
sitting with a woman in the lobby of the Napa Police Department. He knew
Rodriguez was on probation with a search condition. Rodriguez told the
detective that he had driven to the station in a white BMW that was in the
parking lot. When a patsearch did not reveal any car keys, the woman said
the keys were in the car along with a third person. Detective Wade called
Officer Koford to make contact with the person in the car.
Officer Koford approached the car and opened the driver’s side door. A
man wearing a floppy hat and wraparound sunglasses was sitting in the back
seat on the driver’s side. Officer Koford asked the man to remove his
sunglasses and immediately recognized him as the subject of Detective
Wade’s email. Appellant identified himself using a false name. Officer
Koford asked appellant to step out of the car. As appellant exited, the officer
told him multiple times to keep his hands out of his pockets.
Officer Koford ordered appellant to face the car and place his hands on
top of his head with his fingers interlaced. Appellant pulled his hands away
a couple of times. As he tried to conduct a patsearch, Officer Koford
recognized that appellant was preparing to fight or flee. He motioned for
Detective Wade to come over.
Detective Wade approached the BMW and secured a handcuff to
appellant’s left wrist. Both officers spoke to appellant using a mixture of
English and Spanish. As Officer Koford pulled appellant’s right hand behind
his back, appellant started to pull forward. Detective Wade told him to relax
but appellant started jerking, pushing, and kicking the officers. He pulled
his arms away and turned to face Detective Wade, punching him on his face
and upper body. Officer Koford wrapped his arms around appellant’s waist,
lowering his head into appellant’s back to protect his head. He called for help

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on his radio as appellant dragged him across the parking lot. When he lifted
his head up to locate Detective Wade, appellant’s elbow hit him hard in the
center of his forehead, snapping his head all the way back. His vision blurred
and he heard a fuzzy ringing white noise.
Detective Wade grabbed one of appellant’s legs and reached up to pull
him down by his belt as appellant kicked him with his other leg. The kicks
landed on his entire upper body, including his neck, shoulder, and chest.
Eventually all three men fell to the ground in a planter box next to the
sidewalk. Officer Koford felt a strong tug and saw appellant’s right hand
pulling on the holster of his gun. He pulled his hip back and punched
appellant in the face.
As the officers struggled with appellant on the ground, a truck driver
approached and asked if they needed help. They told him to put his knees on
appellant’s back. Other officers arrived and they were finally able to control
appellant’s arms and handcuff him. Appellant continued to struggle even
after he was handcuffed. A “wrap” device was applied to restrain his legs.
Officer Koford testified that it was one of the most violent fights he had
experienced as a police officer. A video of the incident taken from Koford’s
body camera was played for the jury.
After the fight was over, Officer Koford felt a sharp pain in his neck.
Detective Wade’s shoulder and pectoral muscle started to hurt “pretty bad”
and he had cuts on his ear. An X-ray revealed that Officer Koford had
sustained a fracture to his neck. He was diagnosed with an avulsion fracture
in his cervical spine. Officer Koford experienced pain and discomfort and was
out of work for two weeks before returning to light duty. He gradually
regained some mobility with months of physical therapy. He still had
soreness and limited mobility at the time of trial, symptoms that may be

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permanent. Detective Wade was diagnosed with a torn pectoral muscle. He
was placed on light duty for two weeks. The pain persisted for two or three
months.
Sergeant Nick Dalessi testified that he had contacted appellant several
times. On one such occasion, he stopped appellant for a vehicle code
violation. When questioned about a black backpack, appellant told Sergeant
Dalessi it was not his and gave consent to search it. He also allowed the
officer to search his phone. A Spanish translator who was called to the scene
confirmed that appellant had understood the questions and had given
consent. Appellant does not speak English with anything close to fluency,
but he appeared to understand Sergeant Dalessi and he complied with
everything he was asked to do.
C. The Defense Case
Appellant testified that his primary language is Spanish but he does
understand a little bit of English. On March 21, 2018, he was driving with
Rodriguez when he fell asleep in the car. He woke up when he heard a knock
on the car door and recognized the person who opened the door as a police
officer. Appellant did not know where he was and was still half asleep. The
officer asked for his name and he gave a false name because knew he was
subject to arrest. He complied when the officer asked him to remove his hat
and sunglasses and get out of the car. He put his hands on top of his head
and allowed the officer to search him. The officer told him to lower his hands
so he could put on the handcuffs.
Appellant jerked his right hand backwards because the handcuffs were
too tight and he was in pain. The officers then grabbed his left ring finger,
breaking it, and took him to the ground. He believed he had complied with
their orders to the extent he understood them. He initially denied resisting

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or punching any of the officers. On cross-examination appellant admitted he
resisted the officers, but said he never wanted to hit them.
D. Jury Deliberations, Verdict, and Sentencing
The jury reached its verdicts on the first day of deliberations, finding
appellant guilty on counts one and three and guilty of the lesser included
offense of simple assault on a peace officer (§ 241, subd. (c)) as to count four.
The jury found the great bodily injury enhancement to be true as to count
three. In a bifurcated proceeding, the trial court found the on-bail allegation
to be true. Appellant was sentenced to an aggregate term of nine years eight
months. This appeal followed.
DISCUSSION
Appellant’s sole claim on appeal is that the trial court abused its
discretion by failing to properly investigate potential juror misconduct after a
juror notified the court that juror No. 10 had fallen asleep during testimony.
A. Additional Background
At the conclusion of the first day of trial following Detective Wade’s
testimony, a juror passed a note to the bailiff stating that juror No. 10 “fell
asleep during testimony.” The court went on the record and the following
exchange occurred:
“[THE COURT]: I was handed a note by Bailiff Berg that was handed
to him by a juror, and it says here, Juror No. 10 fell asleep during testimony.
[¶] I’ve discussed it with counsel at bench. Certainly we don’t want to
embarrass Juror No. 10, but I thought I would speak to the entire jury
tomorrow that if you are having—if you’re getting tired and you need more
breaks, or if you want to just stand in place, that’s fine. And I think that
should do it. Unless anyone wishes me to go further.
“[DEFENSE COUNSEL]: No, sir.

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 “[PEOPLE’S COUNSEL]: No, thank you. I’m surprised. I thought it
was riveting.”
The following morning, the trial court instructed the jury as follows:
“Before we start, I do want to say that jury trials sometimes are boring or
sometimes they drag out and they’re very difficult sometimes to stay awake.
Please know that I’m happy to give you a break at any time, or maybe we
don’t need a full break but you could just stand in place and stretch. I might
ask you from time to time if any of you would like such a break. If not, feel
free to raise your hand and let me know. I’m not always good at that, but
obviously you have to pay attention to the evidence or it can cause us a
mistrial and have to start over. So, please—and this applies to everyone. So
please be as alert as you can.” The trial court and the parties did not discuss
the matter again.
During jury deliberations, the jury sent a note stating that juror No. 10
needed to hear Detective Wade’s testimony from the time Officer Koford
motioned for help until appellant was cuffed. The court reporter read the
requested testimony to the jury.
B. Law Regarding Juror Inattention
Section 1089 authorizes the trial court to discharge and replace a juror
who “becomes ill, or upon other good cause shown to the court is found to be
unable to perform his or her duty.” Such good cause may exist if a juror is
sleeping or inattentive during trial. (Hasson v. Ford Motor Co. (1982)
32 Cal.3d 388, 411 (Hasson); People v. Bradford (1997) 15 Cal.4th 1229, 1349
(Bradford); People v. Bonilla (2007) 41 Cal.4th 313, 350.) “ 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.’ ” (Bradford, at p. 1348.) However,

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“[a] juror must not be discharged for sleeping unless there is convincing proof
the juror actually slept during trial.” (People v. Bowers (2001) 87 Cal.App.4th
722, 731.)
“ ‘The decision whether to investigate the possibility of juror bias,
incompetence, or misconduct—like the ultimate decision to retain or
discharge a juror—rests within the sound discretion of the trial court.
[Citation.] The court does not abuse its discretion simply because it fails to
investigate any and all new information obtained about a juror during trial.’ ”
(People v. Osband (1996) 13 Cal.4th 622, 675.) A hearing is required only
where the court possesses information which, if proved to be true, would
constitute “good cause” to doubt a juror’s ability to perform his or her duties
and would justify his or her removal from the case. (Id. at pp. 675–676.)
Mere speculation that a juror might have been sleeping or inattentive is
insufficient to provide notice of good cause to discharge, and does not obligate
a trial court to conduct an inquiry. (People v. Espinoza (1992) 3 Cal.4th 806,
821.)
C. Analysis
The Attorney General contends that appellant’s claim is forfeited on
appeal. We agree.
Appellant forfeited his right to complain about the trial court’s failure
to investigate whether juror No. 10 slept during testimony because his trial
counsel agreed to the court’s decision to admonish the jury generally without
conducting any further inquiry. (See People v. Williams (2013) 58 Cal.4th
197, 289 [defendant forfeited claim regarding sleeping juror where he
“neither objected to [the juror’s] continued service nor requested a mistrial on
the ground of juror misconduct”]; see also People v. Holloway (2004)
33 Cal.4th 96, 124 [“defendant forfeited this issue [of alleged juror

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misconduct] by failing to seek the juror’s excusal or otherwise object to the
court’s course of action”].) Even after the court received a note during
deliberations that juror No. 10 wanted a readback of a portion of Detective
Wade’s testimony, appellant did not raise any issue of juror inattentiveness
or misconduct. Having agreed to the court’s admonishment and to forgo any
further corrective measures, appellant cannot now object to the court’s failure
to conduct such an inquiry.
Even if we were to reach the merits of appellant’s claim, we would find
no error in the trial court’s decision to admonish the jury without further
inquiry. In considering claims of juror inattentiveness, our Supreme Court
has observed that “ ‘although implicitly recognizing that juror inattentiveness
may constitute misconduct, courts have exhibited an understandable
reluctance to overturn jury verdicts on the ground of inattentiveness during
trial. In fact, not a single case has been brought to our attention which
granted a new trial on that ground. Many of the reported cases involve
contradicted allegations that one or more jurors slept through part of a trial.
Perhaps recognizing the soporific effect of many trials when viewed from a
layman’s perspective, these cases uniformly decline to order a new trial in the
absence of convincing proof that the jurors were actually asleep during
material portions of the trial.’ ” (Bradford, supra, 15 Cal.4th at p. 1349,
quoting Hasson, supra, 32 Cal.3d at p. 411 (italics added).)2

2 The inattention in Hasson took the form of jurors reading a novel and
doing crossword puzzles during the presentation of evidence. The court found
that this significant diversion of the jurors’ attention constituted misconduct
and raised the presumption of prejudice. (Hasson, supra, 32 Cal.3d at
pp. 410, 412 [affirming denial of new trial because presumption of prejudice
was rebutted].)

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 Contrary to appellant’s argument on appeal, a trial court is not under a
sua sponte duty to conduct an investigation whenever it receives information
that a juror may have committed misconduct. Nor is it necessarily required
to dismiss a juror who falls asleep during trial. Again, the decision whether
to investigate the possibility of juror misconduct rests in the sound discretion
of the trial court. (People v. Ray (1996) 13 Cal.4th 313, 343.)
Bradford, supra,15 Cal.4th 1229, is instructive. There, the trial court
observed that a juror was asleep during defense counsel’s cross-examination
of a detective. (Id. at pp. 1347–1348.) The record showed “no more than that
the juror had fallen asleep on the day in question and appears to have been
asleep one day earlier; it d[id] not appear that the juror continued to fall
asleep or had been asleep for a longer period of time.” (Id. at pp. 1348–1349.)
The defense counsel did not argue juror misconduct or request a hearing, and
the trial court made no further inquiry regarding the juror’s attentiveness.
The reviewing court concluded the lower court did not abuse its discretion in
failing to inquire about possible juror misconduct in light of the “absence of
any reference in the record to the juror’s inattentiveness over a more
substantial period.” (Id. at p. 1349.)
On this record, we cannot conclude that the trial court was put on
notice of a potential need to discharge juror No. 10. At most, the record
shows only a single possible instance of juror inattentiveness during the
course of the entire trial. There was no indication that the parties or the trial
court observed juror No. 10 to be sleeping. Nevertheless, based on the other
juror’s note, the court promptly addressed the issue by admonishing the jury
generally. Defense counsel’s acquiescence to the court’s admonishment, made
without a concomitant assertion of juror misconduct or a request for a
hearing on the subject, is indicative that the juror’s conduct did not warrant

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such a hearing. We find no abuse of discretion on this record, and certainly
no violation appellant’s right to due process of law and a fair trial.
DISPOSITION
The judgment is affirmed.

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 _________________________
Sanchez, J.

WE CONCUR:

_________________________
Humes, P. J.

_________________________
Banke, J.

A157315 People v. Rivera

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