The opinion of the court was delivered by: Hoch, J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Vernon Lee Belton, Jr., armed with a handgun and accompanied by two other men, committed a home invasion robbery in North Sacramento. Finding the victim alone in her bedroom, defendant struck her in the head with the handgun and then raped and attempted to sodomize her.
Defendant was convicted of first degree burglary, first degree robbery, attempted sodomy, assault with intent to commit sodomy, and two counts of forcible rape. The jury also found that defendant personally used a firearm during the commission of these offenses, and that he raped the victim during the commission of a burglary. The trial court sentenced defendant to state prison for an indeterminate term of 25 years to life, plus a consecutive determinate term of 21 years four months, and imposed other orders.
On appeal, defendant contends that the trial court violated his constitutional rights in a number of ways. First, he claims that the trial court excused two jurors without good cause during the course of deliberations. Second, he asserts that the trial court "effectively coerced" the jury to reach a verdict. Third, defendant contends that his statement to police should have been excluded because the police did not stop the interrogation after he "unambiguously" invoked his right to counsel. Fourth, defendant asserts that the trial court failed to instruct the jury on the specific intent necessary to convict him of attempted sodomy and assault with intent to commit sodomy. Disagreeing with each contention, we affirm the judgment. Defendant also claims that the trial court erred by imposing fees without finding defendant had the ability to pay. We find this claim has been forfeited.
Late at night in September 2003, J.W. and her boyfriend C.T. were drinking Hennessy, smoking marijuana, and watching cartoons at their apartment in North Sacramento. C.T. "sold drugs and shot dice" as a means of generating income and occasionally sold drugs out of the apartment. After watching cartoons, C.T. and J.W. had unprotected sex in their bedroom. A short time later, C.T. answered a knock at the front door and told J.W. that he was going to the mini-mart to get a Swisher cigar and not to close the front door because the lock was broken. J.W. remained in bed and fell asleep.
She awoke about 30 minutes later to loud rustling noises coming from inside the apartment. By the time she opened her eyes, defendant and two other men were standing over her bed. Defendant was armed with a handgun, wore a black ski mask that covered his nose and mouth, and had dreadlocks. He grabbed J.W., who remained unclothed, and threw her on the ground, demanding: "Where's the money at, bitch?" J.W. responded that she did not have any money, prompting defendant to strike her in the head with the handgun and insist: "I'm not playing with you. Where's the money at?" Bleeding from the head, J.W. curled up in the fetal position and told defendant that she had $100 in a skirt that was in the closet. One of the other men took the money from the skirt and said: "I got the money. Let's go." Defendant's accomplices then left the bedroom and continued to ransack the apartment.
Defendant remained in the bedroom and sexually assaulted J.W. He first tried to sodomize her. When that was unsuccessful, he flipped J.W. onto her back and raped her, penetrating her vagina with his penis several times over the course of three to four minutes. The assault came to an end when the other men returned to the bedroom and told defendant several times: "[C.T.] is coming. [C.T.] is coming." Defendant then "finished," pulled up his pants, and went to the bathroom before leaving the apartment. J.W. believed that defendant used a condom during the assault, but also heard a "pop" sound, which she believed to be the condom breaking.
While defendant and the other robbers were still inside the apartment, C.T. was outside enlisting the assistance of his neighbor, J.J. He told J.J. that something strange was going on at his apartment and that he needed to find a gun. J.J. then walked to a corner of the apartment complex with a clear view of the apartment and saw a young African-American man leaving the apartment. This man had dreadlocks and was holding a handgun. Deciding to patrol the neighborhood, J.J. went back to his house to get his truck. As he pulled out of the apartment complex gate, he saw the same man, accompanied by several others, in a car pulling out of another nearby apartment complex. J.J. followed in pursuit, chasing the car down Howe Avenue at a high rate of speed. When the pursued vehicle turned onto Auburn Boulevard, it lost control and crashed into a fence. J.J. then drove back to the apartment complex to pick up C.T.
Meanwhile, J.W. came out of the apartment and told C.T. what happened. She then went to his mother's apartment across the street to call 911. At this point, J.J. drove C.T. to the crash site, dropped him off, and then found a police officer to flag down. By the time the police officer arrived at the crashed vehicle, the occupants had fled the scene.
J.W. was taken to UC Davis Medical Center, where a sexual assault examination was performed. Back at her apartment, police collected a used and torn condom that was discovered on the bathroom floor. Police also collected evidence from the crashed vehicle, which was a rental car that had been rented to Kenneth Hill, defendant's former cell mate. Hill and defendant were released from jail about two weeks prior to the home invasion robbery and sexual assault.
Defendant was not identified as a suspect until April 2006. Shortly thereafter, J.W. picked defendant out of a photo line-up, stating: "Probably [defendant], but I'm not positive. I'm basing that on his eyes because I never saw the lower half of his face. His eyes were real small and kind of almond shaped. [Defendant] looks like the guy who sexually assaulted me." Police then questioned defendant and obtained a sample of his DNA. Defendant admitted to having sex with J.W., but claimed that he met her at the mini-mart and that she invited him into the apartment to smoke marijuana. According to defendant, after they smoked the marijuana they had consensual sex, at which point three men broke into the apartment and started to hit defendant, prompting him to flee from the apartment.
Defendant's DNA was a match for that collected from semen samples taken from J.W.'s anal and vaginal areas. Defendant's DNA was also a match for that collected from the torn condom found on the bathroom floor. Defendant's DNA also matched that collected from a cigarette, a red hat, and a white t-shirt found in the crashed vehicle.
Defendant contends that the trial court violated his constitutional rights to due process and a fair trial by dismissing two jurors during deliberations "even though neither juror failed to or was unable to deliberate." We disagree.
After two full days of deliberations, the jury sent the trial court a note advising that they were unable to reach a decision. In response, the trial court sent the jury a questionnaire asking with respect to each count: (1) the number of votes taken; (2) when the last vote was taken; and (3) the numerical breakdown of the jury on its first and last vote. The jury responded that it had taken a single vote that morning, and that the numerical breakdown was six-five-one as to each count.
When the foreperson returned the questionnaire, she advised the bailiff of her concern that three of the jurors were "trying to rush through everything" and were not "taking their obligation seriously." The trial court then questioned the foreperson, who explained that Juror No. 12 "seemed biased" because she stated, "'not guilty'" when she first entered the deliberation room. The foreperson also explained that this juror, a high school biology teacher, "seem[ed] to be in a hurry and wanting to get this trial over with," repeatedly commenting that she "stays up until 11:00 at night [correcting paperwork] and then has to be back at the high school at 6:30 in the morning to drop off the paperwork." The foreperson also complained that Juror No. 6 asked the other jurors whether they were being paid for their jury service. When several jurors answered that they were being paid, he responded that it was "not fair," and that he did not seek to be excused for economic hardship because "he wanted to see what it was like" to be on a jury.*fn1
The trial court then questioned Juror No. 6. When asked whether he was being paid by his employer for his jury service, the juror responded that he was not. And when asked whether that created a hardship, the juror responded: "Kind of, yes, since it has been going on for so long. If it continues, it will." The trial court then asked how he supported himself without this source of income. The juror answered: "I get help from whoever I can." When asked whether he was thinking about how he was going to pay his bills, the juror responded: "Well, right now I don't have too many bills to pay, but, kind of, yeah."
The following exchange then took place: "[Trial court:] So if you were to -- if the jury were to need to deliberate for another week -- you kind of put your teeth together. [¶] [Juror No. 6:] Yeah. [¶] [Trial court:] I have to mark things on the record. [¶] [Juror No. 6:] Yeah, it is kind of inconvenient. But if I'm needed, I guess I can do it. [¶] [Trial court:] Well, could you promise us that you can continue to deliberate without thinking about 'I want to hurry and get this over with?['] [¶] [Juror No. 6:] Umm. A hundred-percent truthfully, no, probably not." The trial court then asked: "Can you promise us not to think about when will this be over, meaning deliberations, if I were to send you back into the jury deliberation room?" The juror answered: "No, I can't."
The trial court also questioned Juror No. 12. The juror confirmed that she had been staying up late correcting papers and getting up early to return them to the high school before returning to the court to continue deliberations. She denied making any statement that she wanted to "get this over with." She also stated that she was committed to participating in deliberations, discussing the evidence with the other jurors, and allowing each juror to participate in deliberations "[r]egardless of how long it takes." The trial court decided not to remove Juror No. 12 from the jury.
The trial court then called Juror No. 6 back into the courtroom and asked two questions in order to "make sure" that continued participation would not result in a hardship. First, the trial court asked: "Can you focus on the evidence regardless of how long jury deliberations take?" He responded: "No." Second, the trial court asked: "Can you put aside your concern regarding the time it is taking and your not getting paid and your bills and focus just on the evidence?" He responded: "No, ma'am." Defense counsel objected to the removal of this juror, but candidly stated: "I think those were clear answers, ...