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People v. Henry

March 23, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CARL HENRY, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County, Tomson T. Ong, Judge. Affirmed. (Los Angeles County Super. Ct. No. NA075737).

The opinion of the court was delivered by: Suzukawa, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Defendant Carl Henry appeals from the judgment entered following his conviction by jury of two counts of first degree burglary and one count of auto burglary. (Pen. Code, §§ 460, 459.)*fn2 The jury also found that he had suffered a prior serious or violent felony conviction. (§§ 1170.12, subds. (a)-(d), 667, subds. (a)(1), (b)-(i).) He appeals, contending that the trial court violated his right to be present during the proceedings and there is insufficient evidence to sustain his conviction for auto burglary.

In the published portion of the opinion, we conclude that there is sufficient evidence to support defendant‟s conviction for auto burglary. In the unpublished portion of the opinion, we find that the trial court properly excluded defendant from the trial. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Defendant's Removal From the Courtroom

Prior to the presentation of the evidence, defendant was escorted from the courtroom after his outburst in the presence of the jury and did not return. As he now complains that the court deprived him of his constitutional right to be present during the trial by failing to comply with the requirements of section 1043, we set forth his disruptive conduct in detail.

During jury selection, one of the prospective alternate jurors told the court and the attorneys at sidebar that defendant was "scoffing" when one of the other prospective jurors spoke about relatives in law enforcement. The alternate juror, who was later excused by the defense, expressed concern that defendant‟s behavior had caused the juror to become biased against him. After the jury was sworn, the court was informed that one of the jurors had noted defendant‟s behavior and worried that "it[‟]s swaying my opinion because it has continued." The court did not excuse the juror, explaining that defendant "has been acting up in the courtroom. I consider that to be invited error."

After the court excused the jurors, defendant said, "What about like this jury of my peers? Half them is police officers, ex police officer‟s family." The court attempted to interject, and defendant interrupted: "And I‟m looking at this. Do I have that right for me not to accept that -- that jury?" After the court explained that the jury had been sworn, the bailiff is quoted as saying, "No," and the court tells defendant, "Don‟t get up so quickly." We infer from the bailiff‟s and the court‟s comments that defendant stood up at counsel table before the bailiff was prepared to escort him out of the courtroom.

The next court day, the court read the jury preliminary instructions. It then invited the prosecutor to give an opening statement. The following took place.

"The Defendant: May I speak to you? I have something to say.

"[D.A.]: Good morning, Ladies and Gentlemen.

"The Court: [Defense counsel], would you ask your client to lower his voice.

"[D.A.]: May I proceed, Your Honor? Good morning, Ladies and Gentlemen. This case involves three different charges.

"The Defendant: You know what I‟m here[.] They trying to ...


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