P. v.
Renshaw
Filed 7/29/13 P. v. Renshaw CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Sutter)
----
THE
PEOPLE,
Plaintiff and Respondent,
v.
EDWARD
CHE RENSHAW,
Defendant and
Appellant.
C066537
(Super. Ct. No. CRF080039)
A jury convicted defendant Edward
Che Renshaw as charged of four felony sex offenses against alleged victim C.,
and found he had substantial sexual contact with her and caused her great
bodily injury in connection with two of the counts.
(Pen. Code, §§ 288, subd. (a) [lewd act with child under 14], 288.5,
subd. (a) [continuous sexual abuse of child under 14], 288.7, subds. (a)
[sodomy with child 10 or younger] & (b) [oral copulation or sexual
penetration with child 10 or younger], 1203.066, subds. (a)(2) &
(a)(8).) The trial court sentenced
defendant to prison for 18 years, consecutive to a term of 40 years to life,
and defendant timely appealed.
On appeal, defendant contends no
because the victim was over 10 (but not yet 11) and the relevant statute
requires that the victim be “10 years of age or younger.†(Pen. Code, § 288.7, subd. (a).) He also claims the trial court erred by
permitting the People to introduce prejudicial uncharged act evidence showing
he committed sexual offenses against other girls and young women. Finally, defendant contends the trial court should
have granted his motion for a new trial based on juror misconduct.
As we explain, we find no
error. Accordingly, we shall affirm the
judgment.
FACTS
People’s
Case
The charged offenses as described by
C. were partly corroborated by circumstantial
evidence, and partly corroborated by uncharged act evidence showing
defendant sexually victimized other girls and young women, reflecting his
predisposition to commit such offenses, and in some cases showing his intent,
motive, common plan, and opportunity.
(See Evid. Code, §§ 1101, subd. (b) (§ 1101(b)), 1108 (§ 1108).)
C.’s Trial Testimony
C. testified defendant was her second cousin, but she called
him uncle.
title="">[2]
C. lived in the same house as defendant, with defendant’s mother, for
about two months beginning in October 2005, and later from January 2006 to February
4, 2007, on Park Avenue.
C. shared a bedroom with her two younger sisters, and defendant shared a
bedroom with his then-girlfriend Michele and his son, I.
A few weeks after C. moved back to the Park Avenue home, in January 2006, while they were
in the garage, defendant asked C. to suck his penis, and he instructed her how
to do this while rubbing her vagina and “butt†over her clothing. Defendant told C. he would kill her mother
and sisters, which scared her. He made
her do it again in his bedroom a few days later, and ignored her pleas to
stop. Between January 2006 and her 10th
birthday in June 2006, defendant made C. suck his penis “over 50†times and
also stuck his finger in her vagina many times, which hurt and caused bleeding,
again ignoring her pleas.
Once, after she turned 10, but before she turned 11, and
before she went on a school trip,
and once he stuck a phone antenna in her vagina, both times making her bleed.
Shortly before C. returned from the school trip, defendant’s
son E. was born.
name="_ftnref4" title="">[4]
During the period between her 10th birthday (June 2006) and the school
trip, defendant stuck his fingers in C.’s vagina “Like over 20†times. He would alternate, making her suck his penis
one day and sticking his fingers in her vagina the next day. C. did not cry out because she was
afraid. After C. went on the trip,
defendant sodomized her, which hurt and caused bleeding. He sodomized her five to six times per week,
and generally made her suck his penis or would put his fingers in her vagina
before he did so. Between the time E. was
born (September 2006) and the time C. turned 11 (June 2007), defendant sodomized
her over 90 times, and made her suck his penis and put his fingers in her
vagina over 25 times. Once, defendant’s
mother came in when defendant had his penis in C.’s rectum.
Once, defendant’s girlfriend Michele walked in when defendant had his fingers
in C.’s vagina, but C. was under a blanket.
After C. moved with her family to Julie Drive, defendant
rented an apartment in the same complex, where he sodomized C. Between the time C. turned 11 and the last
time he abused her, defendant sodomized her about 10 times, made her suck his
penis, and stuck fingers in her vagina.
Once defendant’s girlfriend Amber walked in while C. had her pants down
and defendant was about to sodomize her.
C. kept her eyes closed during the abuse, but saw
defendant’s penis once when he got up to answer the phone, and saw one half was
lighter than the other, and she later saw a picture of his penis on Amber’s
phone.
title="">[8]
The last time defendant abused C., on July 28, 2007, he put
the tip of his penis in her vagina.
Defendant sometimes gave C. a dollar, or candy, or promised
to buy her clothing, but he never did.
C. eventually told two friends about the abuse, but said she would never
tell her mother until defendant was dead because she was scared. When C. finally reported the abuse, she was
too embarrassed to give all the details.
Other Testimony Related to
C.’s Claims
C.’s mother testified she was defendant’s mother Virginia’s
first cousin, and she initially left C. and other daughters with Virginia due
her own drug addiction and financial straits.
Later, in February 2007, she rented an apartment on Julie Drive, where
she lived with her daughters. She
refused to let defendant move in when he asked, but he moved into another
apartment in the same complex.
According to authenticated school records, C. enrolled in a
Yuba City elementary school on October 14, 2005, with a listed home address on
Park Avenue. C. moved to a Sacramento
school on November 18, 2005, but returned to Yuba City on January 17, 2006,
finished fourth and fifth grade there, then went to a middle school beginning
on August 20, 2007, all while living on Julie Drive.
A pediatric nurse practitioner and experienced child sexual
assault examiner testified that most child sexual assault victims have normal
examinations, particularly as the time lapsed from the last abuse
increases. C.’s findings were
indeterminate.
Other Incidents
Amber M. testified she had been defendant’s girlfriend
beginning in early 2007, and she also lived at the Julie Drive apartments. Amber was 26 or 27 during the relationship,
and defendant forced himself on her many times.
The first time, when they were having intercourse, he choked her and
sodomized her even though she told him to stop, then she lost
consciousness. Thereafter, he forced
himself on her almost on a daily basis, vaginally or anally, once using a
“gigantic squash†in her vagina and once using a plastic shampoo bottle in her
vagina. She was too scared to protest.
Amber went to Rocklin at defendant’s request in December 2007,
and defendant said this was because of a Sutter County warrant. Amber returned to Yuba City when her mother
told her the police were looking for them, but defendant did not go with her,
and told her to lie to the police or else he would go to jail.
Michele S. testified she once saw defendant and his niece
M.M. in bed, sleeping. Near Thanksgiving
2007, while defendant was dating Amber, defendant forcibly had sexual
intercourse with Michele, and made her suck his penis. She did not report the incident because she
was scared of defendant, who was abusive.
Before Michele reported defendant’s abuse to the police, on about
December 6, 2007, Michele stayed at his aunt’s house in Rocklin, with her son,
Amber, and Amber’s daughter. Michele and
Amber returned to Yuba City, but defendant did not, stating there was a warrant
for his arrest. When Michele was
questioned by Yuba City police, she lied because she did not want to get into
trouble.
M.M., 18 at the time of trial, was born in November 1991,
and defendant is her mother’s brother.
When she was 10, at her grandmother’s house on Park Avenue, defendant
unzipped her sweater and pants when she was sleeping, and touched her
breasts. M.M. reported this to her
school counselor the next day, and was taken to the police and then placed in
foster care for a year. When she was 12,
M.M. was returned home, and when she was 13, defendant again abused her. The first time, when she was sleeping,
defendant rubbed her vagina and when she said to stop, he offered her marijuana. Then, for about a three-year period, until
about “a week before he got locked up†defendant had intercourse with M.M. many
times, and when she was about 15, and high on Ecstasy he gave her, defendant
sodomized her. He put his mouth on her
vagina and made her suck his penis many times when she was aged 13-16. He also put fingers in her vagina. Defendant offered her alcohol, and when she
was only 10 offered her candy to “let him touch my boobs.†M.M. had previously denied defendant had anal
sex with her because she was embarrassed.
Myrna testified she was born in October 1988 and was 16 in
June 2005, while in foster care with Michele S., defendant’s girlfriend. One night, defendant pulled Myrna onto a
swing bed on the porch, got on top of her, and ignored her protests until
Michele came out. Myrna was adamant they
had not had intercourse, even after being shown a contrary police report. But a peace officer testified that on June
11, 2005, Myrna reported forcible intercourse, stating “she was orally
copulated and that there was actual sexual intercourse with penetration[.]â€
Jessica F. testified that on August 4, 2002, when she was
17, she met defendant (younger than she was, but bigger) at church and he
offered to take her to a party after he changed clothes at his house. They were kissing, but then he started
touching her vagina under her pants (over her underwear) and touching her
breasts, kissed her thighs “and was going up†and rubbed his still-clothed
penis against her vagina, all the while ignoring her requests to stop until
someone knocked on the door. Jessica was
scared. He kept ignoring her when she
told him to stop. When she tried to
leave, he pushed her on the bed, but she was able to run away. She gave a statement to a police officer “a
couple days to a week†later.
T.W. testified she worked with defendant at a Kirby vacuum
distributorship in 2007. At one point,
while walking on a road in Yuba City, defendant asked her to have sex with him,
and after she declined, he suggested they “could just have anal sex.†When T.W. again refused, defendant grabbed
her, and, in her words, pulled her “into the carport with his arm around my
neck, and pushed me up against the wall, pulled my pants down, and proceeded to
have anal sex with me.†On other
occasions, T.W. had consensual intercourse with defendant. Once in a passenger van with other employees,
T.W. orally copulated another coworker, but rebuffed defendant. When T.W. moved to the front of the van and
told the driver defendant had been bothering her, he grabbed her hair and said
she was “not going to embarrass him like that†and they fought; after the
driver pulled over, defendant yelled at T.W. and threatened to kill her after
she spat in his face. T.W. was impeached
with a felony conviction, and she was still on parole for a theft-related
offense.
C.D., aged 23 at trial, testified she knew defendant through
a school program around 2000 or 2001.
Once in the library, defendant grabbed one or both of her breasts over
her clothes, and poked her breast with a pen, using the word “deflate.†She repeatedly told him to stop, but he did
not stop, and called her a “bitch†and “gutter slut.†This happened when she was 14, and defendant
was about the same age.
Defendant’s Testimony
Defendant testified and denied any sexual contact with C.,
and denied the forcible uncharged act evidence, although he admitted T.W. was
hitting him during the van incident, after she tried to kiss him after sucking
his penis and another man’s penis in the van.
He denied he asked Michele or Amber to lie to the police, and denied he
had been hiding from the police when he went to Rocklin in 2007. He admitted that Michele walked into the
bedroom once while C. was rubbing his back, but he did not remember being covered
by a blanket.
DISCUSSION
I
Sufficiency of the Evidence
Because C.
had passed her tenth birthday (but had not yet reached her eleventh birthday)
when he first sodomized her, defendant contends no
sodomy of a child by a person over 18, with “a child who is 10 years of age or
younger.â€
title="">[9]
(Pen. Code, § 288.7, subd. (a).)
Our Supreme
Court recently resolved this issue adversely to defendant, construing the
phrase “10 years of age or younger†as used in section 288.7 to refer to a
child who has not yet reached his or her 11th birthday. (People
v. Cornett (2012) 53 Cal.4th 1261.)
Accordingly, we must reject defendant’s contention. (Auto Equity
Sales, Inc.
v. Superior Court (1962) 57 Cal.2d
450, 455.)
II
Uncharged
Act Evidence
Defendant
contends the trial court abused its discretion by permitting the People to
introduce evidence of uncharged sexual offenses. We are not persuaded.
The People
moved in limine to introduce evidence that defendant had molested several other
girls while they were between the ages of 10 and 17, and had forced himself on
two adult women he had dated, to show his sexual attraction to young girls and
his propensity to commit sexual offenses, under the authority of sections
1101(b) and 1108. Defendant contended
the evidence was irrelevant and was unduly prejudicial under Evidence Code
section 352 (§ 352). Defendant also
objected that although some police reports had been disclosed, there were no
declarations setting forth the proposed testimony, and he sought a hearing
(Evid. Code, § 402
(§ 402)) to assess that evidence.
The trial
court admitted all the incidents under section 1108, and some under section
1101(b).
title="">[10]
The People
later filed a supplemental motion to introduce evidence of uncharged acts
against T.W., an additional adult victim.
The motion was granted under both sections 1101(b) and 1108.
The jury
was instructed on the limited purposes for which the uncharged act evidence
could be used.
name="_ftnref12" title="">[12]
In
argument, the prosecutor first described in detail why the jury should find
C.’s testimony credible, pointing to her demeanor and lack of motive to lie,
and described various pieces of corroborating evidence. The prosecutor then argued the relevance and
probative value of the uncharged act evidence, to show defendant’s propensity
to commit sexual offenses, and also (as to Amber, M.M., Myrna and T.W.) to show
his intent (sexual interest in young girls) and common plan (preying on
vulnerable victims, using threats and bribes, predilection for anal
intercourse). The prosecutor argued none
of the uncharged victims had a motive to lie, and their testimony corroborated
C.
Defense
counsel argued in part that the prosecutor was unfairly piling on, by
introducing evidence about uncharged acts, and that C. was not credible,
pointing to inconsistencies in her testimony; counsel also emphasized the
People’s high standard of proof.
Claims
1. Failure to
Exercise Discretion
Defendant
first makes the procedural argument that the trial court did not apply the
correct standards in making its section 352 ruling because in its comments on
the record “the court seemed totally focused upon whether the uncharged act[s]
had any similar characteristics to the charged offenses†but did not explicitly
discuss other relevant factors such as the cumulative nature of the
evidence. We disagree.
Section 352
provides in full: “The court in its
discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.â€
“The two
crucial components of section 352 are ‘discretion,’ because the trial court’s
resolution of such matters is entitled to deference, and ‘undue prejudice,’
because the ultimate object of the section 352 weighing process is a fair
trial.†(Harris, supra, 60
Cal.App.4th at p. 736.) The trial court
should consider the possible inflammatory nature of the proffered evidence, the
likelihood it will confuse the jury and distract it from the pleaded issues,
the remoteness of the evidence, the trial time it will consume, and its probative
value. (See, e.g., id. at pp. 737-741.)
Defendant
is correct that the trial court focused on similarities between the charged and
uncharged offenses. But, as defendant
acknowledges “Although the record must ‘affirmatively show that the trial court
weighed prejudice against probative value’ [citation], the necessary showing
can be inferred from the record despite the absence of an express statement by
the trial court.†(People v. Prince (2007) 40 Cal.4th 1179, 1237; see
1262, 1274-1275 (Hollie).)
Similarity
between the charged and uncharged offenses is considered the “‘principal factor
affecting the probative value of an uncharged act[.]’†(Hollie,
supra, 180 Cal.App.4th at p.
1274.) That does not mean the trial
court failed to consider other
appropriate factors. The prosecutor’s in
limine motions and the defense opposition discussed section 352 and cases
interpreting it and we presume the trial court read those filings, and
understood the appropriate factors to consider.
(See People v. Gunder (2007)
151 Cal.App.4th 412, 416.)
402 Hearing
Defendant
buries a procedural argument within his attack on the merits of the trial
court’s decision: He contends the trial
court could not properly evaluate the proposed uncharged act evidence without
conducting a hearing outside the presence of the jury (see § 402) to evaluate
the proposed testimony. We deem this
argument forfeited both because it is not properly headed (see
Cal.App.4th 829, 840 (Roscoe)) and because defendant cites no
authority requiring such a hearing (see People
v. Anderson
(2007) 152 Cal.App.4th 919, 929). Further, defendant has not explained how the
purported error caused prejudice, and concedes the prosecution summary “was
essentially consistent†with the trial testimony. Absent an explicit argument explaining
prejudice, we are under no obligation to address the claim of error. (People
v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11; People v. Coley (1997) 52 Cal.App.4th 964, 972;
Cal.App.4th 68, 106.)
name="_ftnref13" title="">[13]
Claims
Defendant
next contends the trial court abused its discretion on the merits. We find no error.
In his
briefing, defendant complains about “uncharged act†evidence, but he does not
separately analyze section 1108 and section 1101(b). He argues the trial court misapplied section
352, and discusses the prejudice from and only from “propensity†(§ 1108)
evidence. Absent coherent argument, we
need not separately address the trial court’s section 1101(b) analysis.
(See Roscoe,
Defendant
asserts generally that the uncharged act evidence portrayed him as a “sex
offending maniac with the propensity to commit any sexual offenses at
all.†However, as we have observed
before, in a case discussing section 1108, “Painting a person faithfully is
not, of itself, unfair.†(
The uncharged act evidence showed defendant had a strong disposition to
sexually victimize girls and young women, and had done so for years.
Although
not structured as an attack on the validity of section 1108, in effect
defendant’s brief quarrels with the legislative judgment in enacting that
statute. This case fits
of section 1108; we have previously described that purpose as follows: “Evidence of a prior sexual offense is
indisputably relevant in a prosecution for another sexual offense. ‘In the determination of probabilities of
guilt, evidence of character is relevant.’â€
(Fitch, supra, 55 Cal.App.4th at p. 179.)
“Our elected Legislature has determined that the policy considerations
favoring the exclusion of evidence of uncharged sexual offenses are outweighed
in criminal sexual offense cases by the policy considerations favoring the
admission of such evidence.fn.
The Legislature has determined the need for this evidence is ‘critical’
given the serious and secretive nature of sex crimes and the often resulting
credibility contest at trial.â€
(Id. at pp.
181-182.)
“Consistent
with common experience, the Legislature has found that persons who commit sex
offenses often have a propensity to commit sex crimes against more than one
victim. . . . Thus, [section 1108] evidence is presumed to be admissible to assist the trier of fact ‘in
evaluating the victim’s and the defendant’s credibility.’†(Escudero,
supra, 183 Cal.App.4th at pp.
305-306, emphasis added.) Further:
“By subjecting evidence of uncharged
sexual misconduct to the weighing process of section 352, the Legislature has
ensured that such evidence cannot be used in cases where its probative value is
substantially outweighed by the
possibility that it will consume an undue amount of time or create a substantial
danger of undue prejudice, confusion of issues, or misleading the jury. (Evid. Code, § 352.) This determination is entrusted to the sound
discretion of the trial judge who is in the best position to evaluate the
evidence. [Citation.] With this check upon the admission of
evidence of uncharged sex offenses in prosecutions for sex crimes,†section
1108 satisfies due process. (
Defendant
acknowledges, as he must, that the jury was properly instructed on the limited
purposes for which the uncharged act evidence was admitted. “Jurors are presumed able to understand and
correlate instructions and are further presumed to have followed the court’s
instructions.†(People v.
Sanchez
(2001) 26 Cal.4th 834, 852; see People v.
Zack (1986) 184 Cal.App.3d 409, 416.) The instructions in this case described each
uncharged victim, and specified whether her testimony had been admitted
pursuant to section 1108 or section 1101(b) or both, and explained the
permissible uses of such evidence, and all of the uncharged acts were described
in the instructions as “sexual battery[.]â€
This
answers defendant’s concern that the jury would seek to punish him in this case
for the uncharged acts, speculating that he had not yet been prosecuted for
them: “Upon review of the arguments of
counsel and the jury instructions, we are persuaded that the jury was not
inclined to improperly punish defendant for the uncharged acts. The jury was given an effective instruction
by the trial court to consider the evidence only for proper limited purposes,
and we must presume the jury adhered to the admonitions.†(Hollie,
supra, 180 Cal.App.4th at p. 1277.)
None of the
uncharged act evidence was confusing.
Nor was the evidence inflammatory in comparison with evidence of the
charged offenses, describing multiple forcible sodomies and other sexual abuses
of a girl beginning when she was just nine years old. None of the uncharged acts were qualitatively
“worse†than the charged acts. This sharply distinguishes defendant’s case
from Harris, supra, 60 Cal.App.4th 727, where the uncharged acts depicted horrific sexual violence, which we
characterized as “inflammatory in the
extreme†and the charged acts
involved “breach of trust by a caregiver†consisting of sexual fondling and
licking. (Id. at pp. 731-735, 738.)
The
uncharged act evidence did consume a great deal of trial time. However, although another judge might have
required the People to pare down the presentation of the uncharged evidence, we
cannot say the evidence was so
time-consuming that it dwarfed the charged evidence, thereby distracting the
jury from its central purpose, or that this one factor shows the trial court
abused its discretion. Again, we find
there was no “‘substantial likelihood the jury [would] use [the propensity
evidence] for an illegitimate purpose.’â€
(Escudero,
p. 310.)
The fact
some of the uncharged victims were adults at the time of the alleged conduct,
whereas the charged victim was a young girl, did not render the evidence
irrelevant. (Escudero, supra, 183
Cal.App.4th at pp. 310-311.) Nor was the
evidence remote, particularly because the evidence showed a continuous pattern
of abuse, with no intervening gap between the charged and uncharged acts. (See People
v. Branch (2001) 91 Cal.App.4th 274, 284-285.)
In short,
we find no abuse of discretion in the trial court’s decision to permit the
prosecution to introduce uncharged act evidence in this case.
III
New
Trial Motion
Defendant
contends the trial court erred by denying his
misconduct. We disagree with this
contention.
The jury
returned its verdicts on August 6, 2010.
On October
25, 2010, defendant moved for a new trial based in part on a juror’s improper
receipt of information outside the courtroom, and supported the motion with a
transcript of an earlier hearing and several declarations.
The
transcript, dated Tuesday, July 27, 2010, shows that before opening statements
had begun, Juror 335686 advised the bailiff of an ex parte communication the
juror had received about the trial over the weekend.
The juror reported that on Saturday, while building a fence with a man,
the juror told the man he would not be able to work the next week because he
was a juror. The man asked what trial it
was and the juror said he could not talk about it. In response, the man said, “‘Well, I hope
it’s not that child molest case.’â€
Although the juror repeated that he could not discuss the case, the man
persisted and told the juror defendant was guilty, and had been offered nine
years but had not accepted. The
fence-builder was going with the juror to a meeting, where “Thomas†would be
present, but the juror told the man he did not want to meet Thomas and, “‘Just
hush up.’†The juror assured the trial
court he could put this out of his mind and the trial court and both counsel
were satisfied. The trial court also
noted that in about 10 minutes, the prosecutor would also tell the juror
defendant was guilty, that is, during the opening statement to the jury.
The
declarations submitted in support of the new trial motion were, as the People
argued, replete “with innuendo, but no evidence of misconduct.†We explain in detail.
Defendant’s
supporting declaration stated that his “family advised†him that his mother’s
ex-husband Thomas Silvera was in the courtroom during the trial “and he in fact
was the person who had talked to the juror while building a fence.†This was sheer hearsay. Defendant also declared that Silvera had
accused him of misconduct in the past and was prejudiced against him “and I
believe†Silvera contacted the juror to prejudice the case. That Silvera accused defendant in the past
was a factual claim, but defendant’s belief
that Silvera tried to prejudice the jury was not.
Defendant’s
mother’s supporting declaration stated “It was told to†her that Silvera was
the man who had spoken to the juror.
This was hearsay. She also
declared that Silvera “hates my son and I believe he would do anything in his
power to influence the jury and prejudice them against my son.†The fact Silvera hated defendant may have
been within defendant’s mother’s knowledge, but her stated belief that Silvera
would try to prejudice the jury was not factual, as no foundation for such
belief was stated in the declaration.
Defendant’s
brother’s supporting declaration states that at one point during the trial he
saw Silvera speaking to Juror 7, but he could not hear what was said.
Defendant’s brother also declared that “Later on†Silvera spoke to
defendant’s mother “and told her if my brother is found not guilty he was going
to press charges for one of his kids. I
overheard the conversation.†However,
defendant’s mother’s declaration says nothing about this conversation, and she
would have been the best person to corroborate it.
No
declaration by Silvera was provided.
Finally, a
jail inmate’s supporting declaration stated he had been at a bar “in early
Septemberâ€--after the verdicts--and
that Silvera and another man were talking about the case with a person who
identified himself as a juror. The
inmate claimed to “know†that Silvera hated defendant.
The trial
court denied the new trial motion, because the juror promptly and voluntarily
reported the initial ex parte contact, indicated he could be fair, and both
counsel accepted the juror’s statement.
The juror did not receive evidence
about defendant’s guilt, only the opinion he was guilty. The fact the juror spoke to Silvera
“there was no prohibition on the juror talking to him, especially if he knew
him as a friend. There’s no reason to
believe they discussed this case, or if they did discuss the case, there’s no
reason to believe that the discussion was anything more than what the
information was at the outset which we determined was the juror said he could
remain fair and impartial and only base his decision on the evidence in
court. [¶] This court can’t help but think that if, in
fact, this juror was in collusion with Mr. Silvera and somebody else to subvert
the integrity of the jury system and to find Mr. Renshaw guilty regardless of
the evidence, then it makes no sense that that juror would have voluntarily
brought this contact to the court’s attention.â€
A new trial may be warranted where a
juror “has received any evidence out of court[.]†(Pen. Code, § 1181, subd. 2.) Generally, any form of jury misconduct “gives
rise to a presumption of prejudice, which ‘may be rebutted . . . by a reviewing
court’s determination, upon examining the entire record, that there is no
substantial likelihood that the complaining party suffered actual harm.’†(People
v. Leonard (2007) 40 Cal.4th 1370, 1425; see People v. Ryner (1985) 164 Cal.App.3d 1075, 1082.)
When a trial court denies a criminal
defendant’s motion for a new trial due to juror misconduct, “We accept the
trial court’s credibility determinations and findings on questions of
historical fact if supported by substantial evidence. [Citations.]
Whether prejudice arose from juror misconduct, however, is a mixed question
of law and fact subject to an appellate court’s independent determination.†(People
v. Nesler (1997) 16 Cal.4th 561, 582 (Nesler).)
Before directly addressing
defendant’s appellate claims, we point out that the trial court could
rationally reject all of the facts stated in the supporting declarations. “Provided the trier of the facts does not act
arbitrarily, he may reject in toto the
testimony of a witness, even though the witness is uncontradicted.†(Hicks
v. Reis (1943) 21 Cal.2d 654,
659-660.)
But even if the trial court credited the admissible (and even arguably admissible) evidence in the declarations, the
showing was anemic, at best: Defendant’s
declaration was based on what he was told by his family and his belief, except
to the extent it showed Silvera had accused him of misconduct. Defendant’s mother’s declaration was also
based on what she was told and her belief, except to the extent it showed her
ex-husband Silvera hated defendant.
Defendant’s brother’s declaration said he saw Silvera speak to the juror
but he had no idea what was said. He
claimed Silvera later told his mother that if defendant were to be acquitted,
Silvera would press charges against defendant on behalf of Silvera’s child.
The sum of all the declarations about pre-verdict conduct was that
Silvera hated defendant, had accused him of misconduct in the past, vowed to
seek justice for his own child if defendant were acquitted, and at some point
during trial conversed with the juror.
The rest was speculation.
The inmate’s declaration merely
showed that after the verdicts, the
juror spoke with Silvera, and corroborated the fact that Silvera hated
defendant.
There are two distinct ways to
analyze possible bias flowing from a juror’s receipt of outside information:
“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. . . . 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.†(
Defendant’s briefing does not
clearly differentiate between these two tests for bias. We consider them separately.
The first test is whether “the
extraneous material, judged objectively, is so prejudicial in and of itself
that it is inherently and substantially likely to have influenced a
juror[.]†(Nesler, supra, 16 Cal.4th
at pp. 578-579.)
Defendant speculates about what Silvera may have said to the juror, but the
only evidence in the record about
what the juror actually heard before deliberations was the evidence the juror
volunteered before opening statements, about the conversation he had over the
weekend. Even if that person was Silvera,
all that was said was that the person believed defendant was guilty, and that
defendant had declined a nine-year plea offer.
The juror assured the trial court he could put this out of his mind. The trial court, observing his demeanor,
accepted the juror’s assurance, and neither counsel objected.
In such circumstances, the trial
court did not err in concluding the presumption of prejudice was
dispelled. During the death penalty
phase of a capital trial, a juror heard a news report that the defendant had
threatened the guards if he were to receive the death penalty. The juror promptly reported what he had
heard, and after stating that he would disregard what he had heard and not
share it with the other jurors, was kept on the jury. (People
v. Zapien (1993) 4 Cal.4th 929, 993-994 (Zapien).) The court held the
presumption of prejudice was dispelled:
“Juror Schwark informed the trial court at the earliest opportunity that
he inadvertently had received information concerning the case. The trial court held a hearing, outside the
presence of the other jurors, at which Schwark pledged he would not divulge
this information to his fellow jurors and would disregard it in performing his
duties as a juror. In his opinion, he
still could be fair and impartial. The
trial court, which had the benefit of observing Schwark’s demeanor, stated it
believed him. According proper deference
to this finding, we uphold the ruling of the trial court, concluding that the
record rebuts the presumption of prejudice and that there is no substantial
likelihood the incident prejudiced defendant.â€
(Id. at p. 994.)
Here, too, after the juror
volunteered information about extraneous information, the juror assured the
trial court he could disregard the information, and we presume the juror did
so. (Zapien,
supra, 4 Cal.4th at p. 996;
905, 919-920; cf. People v. Cissna
(2010) 182 Cal.App.4th 1105, 1114-1115, 1118, 1120-1122 [court would not
presume juror followed instructions where the juror engaged in daily
(“pervasiveâ€) conversations with a friend about “deliberative-type†issues,
such as whether the alleged victim had a motive to lie, and why Cissna had not
testified].)
The second test for juror bias is
whether “even if the information is not ‘inherently’ prejudicial . . . 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.†(
In Nesler,
the offending juror “sat in a bar while a woman revealed damaging information
about [Nesler] for half an hour†and the juror revealed the information “at a
time when she disagreed with other jurors, in an apparent attempt to persuade
them to change their views.†(
Nesler therefore was not a
case of “inadvertent†receipt of information by a juror, although even
inadvertent receipt of outside information by a juror is deemed
misconduct. (Id. at pp. 579-580.) The
claim in Nesler was that the juror’s
conduct reflected actual bias by the
juror, and that claim was sustained based on the evidence in the record.
In contrast to Nesler, and as stated above, in this case there is no evidence
about what, if anything, Silvera said to the juror except for the juror’s
volunteered information before opening statements. Assuming it was Silvera who spoke to the
juror over the prior weekend, all he said was that he thought defendant was guilty
and that defendant had rejected a plea offer.
That does not show any likelihood the juror was actually biased against defendant, even if Silvera hated
defendant. Nor is it significant
(assuming these are the facts) that the juror spoke to Silvera during a break
in the trial, and spoke to him in a bar the month after the verdicts were
rendered. As the trial court found,
there was no legal prohibition on a juror’s speaking with Silvera generally,
because he was not a witness, and there was no evidence any such conversation
was about the trial. Further, as the
trial court observed, the idea that the juror would be in cahoots with Silvera
to throw the trial, after the juror had volunteered
information about the inadvertent ex parte contact he had had before opening
statements, makes no sense.
Defendant’s speculation about the
alleged post-verdict contacts with
the juror is irrelevant, as such contact by definition could not have affected
the verdicts.
In short, defendant’s motion did not
compel the trial court to grant a new trial based on juror misconduct. Prejudice from the inadvertent pretrial
misconduct was dispelled by the trial court’s admonition, and no further
misconduct was proven.
DISPOSITION
The judgment is affirmed.
DUARTE , J.
We
concur:
RAYE , P. J.
BLEASE , J.
name="_ftn1" title="">[1]
We refer to C. and several witnesses by first names or by initials, to
protect their privacy. We note that some
names are spelled differently in different parts of the record.
name="_ftn2" title="">[2]
C. was born in June1996, and defendant was born on December 6, 1987.
