P. v. Butler








Filed 9/19/11 P. v. Butler CA1/2




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, Plaintiff and Respondent, v. CORY ANTHONY BUTLER, Defendant and Appellant.

A128244 (Solano County Super. Ct. No. FCR259026)

Tried by jury on felony counts of criminal threats (Pen. Code, § 422)[1] and aggravated assault with a knife (§ 245, subd. (a)(1)) against domestic partner C. Caldie, Cory Anthony Butler was acquitted on both charges but found guilty of the second count’s lesser included offense of misdemeanor simple assault (§ 240). On a motion for new trial, Butler claimed misinstruction of the jury and a verdict contrary to law (§ 1181, subds. (5) & (6)), arguing in essence that, due to jury reliance on misleading argument by the prosecutor, jurors improperly convicted him of a physical act that was neither charged nor a lesser included offense of the aggravated assault. The trial court denied the motion without comment, suspended imposition of sentence, and placed him on three years’ summary probation.
On this appeal, Butler reiterates, with some elaboration, his new trial motion arguments. We reject them and affirm the judgment.
Background
Trial testimony came from Caldie, Butler, and two Vacaville police officers who came to the house on a report of domestic violence.
Caldie. Caldie testified that, on September 2, 2008, she was living with Butler in a Vacaville house with their seven-month-old daughter and one of her teenage sons. The couple had been in a two-year relationship, engaged to be married, but for months had been arguing, their relationship “off-and-on.” Butler had said the week before that their relationship was not going to work. They had been “breaking up” for months, but Caldie was still in love with him.
That morning, Caldie dropped her son off at school in Roseville and, on the drive back, argued with Butler via phone and text messages. She was unsure at trial whether she had left the baby at home, but figured that she had the baby with her since Butler had already left for work when she left the house. Butler had returned to the house and was agitated, asking when she would be home, saying he needed to take her car to work since their other car was not running well. He was also jealous about a man named Paris whom he had been accusing her for months of seeing. Caldie was additionally stressed by problems that her brothers were having in Oregon, and she had been in frequent phone contact with her parents, who were also in Oregon.
Upon reaching home and laying the baby down in a bedroom to sleep, the morning argument continued and eventually “turned physical.” Caldie described three consecutive assaults by Butler—shoving her into a kitchen chair, throwing her onto a couch, and placing her in a “bear hug” and moving her to a kitchen counter, where he held a 12-inch kitchen knife to her neck. That ended the charged conduct. Afterward, Caldie took the same knife and pursued Butler to the driveway, to keep him from leaving in the car with the baby. After the couple were back inside, a trio of police officers came to the house and eventually arrested Butler, over Caldie’s protests.
Caldie testified that the physical assaults grew in part out of phone conversations she had that day with her parents. She could not recall whether she was on the phone to them when the violence began, but the catalyst, she recalled, was an untrue but “snide comment” she made, in reaction to Butler’s jealousy about Paris: she told him she had slept with Paris and that the sex was good. As she headed toward a kitchen chair, Butler pushed her into it. Then, after another exchange of words (not recounted), Butler grabbed her and threw her up onto a couch in an adjacent room. She was thrown over the arm of the couch and landed “spread out,” lengthwise on the couch, uninjured by that or the previous shove.
Caldie got up from the couch and passed through the kitchen into the family room, on the other side, on her way to the bedroom, but Butler followed behind her and, in the living room, grabbed her in a “bear hug,” “really tight.” Caldie then sensed a sudden change in Butler, to a “loving” demeanor, for he said very sweetly, “like he was sorry”: “ ‘What do you want‌ What do you want‌’ ” Not knowing what caused the change but hearing him speak, she looked up at him, “went limp in his arms,” started to cry, and said: “I just want to die”; “Why don’t you just kill me‌”
Releasing the bear hug but twisting one of her arms up behind her back, Butler walked her back into the kitchen, where he turned and used his body to press her against a counter top, trapped and facing him. He reached onto the counter behind her, grabbed a 12-inch butcher knife, and held it to the right side of her neck, near her face. He said: “ ‘Do you want to die‌ If you want me to kill you, I can do that.’ ” Then pointing the knife to his own stomach, he asked, “ ‘Or do you want to kill me‌’ ” She stood mute, paralyzed and frightened, staring at him.
Then Butler put the knife down on the counter and told Caldie he was taking the baby. Caldie could not recall whether he actually took the baby, but recalled picking up the knife herself, following him outside to the garage, and threatening, “ I’ll slash the tires if you think you’re going to take her.’ ” Butler kept saying, “ ‘No, don’t do that,” and they both went back inside the house.
A short time later, Vacaville police officers knocked on the door. Caldie had not called them, but learned later that her parents had, worried about what she had told them over the phone. A rule in their house, shared by family, Caldie explained, was “that no matter what happens, you don’t call the police.” So she went to the door intending to lie to them, to “smooth it over” so they would go away. She lied at first, saying everything was fine, until one officer persuaded her to come with him out in front, at the garage, out of earshot or view of Butler. There, she told the truth about being frightened by the bear hug and knife wielding (apparently not mentioning being thrown beforehand into the chair or sofa). But Caldie was still in love with Butler and, when the officers arrested him, protested their taking him away, saying falsely that she was not afraid for her life.
Caldie conceded that, after the incident, she kept seeing Butler, kept wanting to work on their relationship, and told a judge at a hearing that she did not feel afraid and did not need a restraining order.
The Officers. Nathan Benevides was one of three officers who responded to the house that day on a report of domestic violence. With partner Bryan Pro at his side, he spoke first with Butler, who denied that anything was wrong as he stood behind a screen door with a large dog. When Benevides asked to speak with anyone else in the house, Caldie came to the door, telling Butler as she passed to walk out onto the porch, “ ‘You owe me.’ ” Stoic and emotionless at first, Caldie turned teary eyed as she went with Benevides to the garage and revealed the grabbing and knife incident, but then she yelled at the officers and denied being afraid once she saw Butler being handcuffed and arrested. After Miranda advisements (Miranda v. Arizona (1966) 384 U.S. 436), Butler said it was just a verbal argument. To Benevides, Caldie seemed genuinely afraid of Butler. Pro confirmed that Butler denied any physical altercation, telling them it was only verbal.
Butler. Butler said that he and Caldie were breaking up, against Caldie’s wishes, and that the actual breakup, just the evening before, was “very civil.” He left the next morning at 3:30 a.m., headed to remote jobs he managed in Humboldt County, when his car broke down. He left Caldie a phone message that he might need the other car. He got his car restarted, and told Caldie he would try to make it back to the house. She said she would meet him there after she dropped off her son. Butler “milked” the car home but found Caldie gone, so he tried to contact her. His sister drove him to the home of one of Caldie’s friends, in a futile search for Caldie, and then back home, where Caldie was back and the garage door open.
Entering through the garage, Butler found Caldie in the kitchen. She threw the car keys at him, and said, “ ‘Your chariot awaits.’ ” An argument erupted when he tried to find out what was wrong. She said she was “always being left with a piece of a car,” not a good one, and that Butler never took the time to work on their Saturn. Butler retorted that his job kept him out of town and that she could have his father fix the car. After arguing about the car, Caldie told him about Paris, saying: “Yes, I fucked him. He was good. I fucked him ten times already.’ ” Angered, Butler pushed her down onto the couch, in the family room off the kitchen.[2]
Caldie “bounced right back up” from the couch, and Butler went to check on the baby in their bedroom, concerned that the argument was getting out of hand. Caldie followed right behind, called him “a piece of shit” and said, “ ‘Why don’t you be a man and take care of your family‌’ ” She pushed on his shoulders, saying “ ‘Come on.’ ” Butler said, “Leave me alone.” Then, when she kept on pushing and he turned around and asked what she wanted, she tried to swing at him. He stepped aside, “let the punch go by,” and asked what was wrong with her.
Then “it came out” that Caldie was worried about her brother. Feeling bad for her, Butler hugged and consoled her, telling her that he was sorry about her brother but that he would be alright. Caldie went limp and said she wanted to die. Butler asked twice, “What do you want to do‌” but Caldie said she was just tired and wanted to die. He comforted her. She calmed down and then went into the kitchen to answer her phone. Butler went on to their bedroom, where the baby was now awake. He picked her up, grabbed some baby clothes, and went back to the kitchen. He still had to go to work and wanted to get the baby out of there and to a house where his mother and sister were. As he put the baby into a car seat on the kitchen table, in Caldie’s view, Caldie spoke on the phone with her mother, then picked up a knife from the counter and went out to the garage. When Butler took the baby and seat out into the garage, Caldie was there holding the knife in one hand, and saying into the phone (in the other): “ “Oh, he’s good. I’m not letting him take my baby,’ and “I wasn’t going to leave my baby there,’ and ‘I wasn’t going to stay there.’ ”
As Butler went to pass Caldie on his way to the car, she “looked scared,” stood like she was going to block him, and said, “ ‘Do you want me to cut you‌’’ ” He ignored that, “spun around” her, went to the car, and put the baby in the back seat. Caldie stood in front of the open driver’s side door as Butler got in but then jumped into the passenger side with the knife. Butler said: “ ‘What‌ You want to go for a ride, too‌ Then let’s go for a ride, but put the knife down, please.’ ” She put the knife on the floorboard, but then, as Butler put on his seat belt and started the car, got out, took the baby from the back seat, and took the baby into the house.
Butler picked up the knife by the blade, got out of the car, went back inside, and put the knife in the kitchen sink, saying “ ‘This is how people get hurt and killed.’ ” The argument calmed, but Caldie’s parents phoned to say the police had been called. Butler said, “ ‘Well, we’ll stay here for the police.’ ”
Butler admitted pushing (not throwing) Caldie onto the couch but denied putting the knife to her neck or saying, “I could do that,” after she said she wanted to die. He did not mention and was not asked about pushing Caldie into the kitchen chair or table. He admitted a conviction for possessing a loaded firearm.
Discussion
Butler’s attack on the conviction for simple battery is threefold: (1) The court erred in denying his new trial motion given prosecutor misconduct in telling jurors that battery was a lesser included offense of assault, in implying that assault and battery were the same crime, and in stating that the People had shown “simple battery, like the lesser-included”; or, if the misconduct claim was waived by defense counsel’s failure to assign it as error, then defense counsel rendered ineffective assistance. (2) The court failed a sua sponte duty to instruct on unanimity, given prosecution failure to make an election as to what act supported simple assault. (3) Alternatively to (2), if an adequate election was made (for acts charged as a knife assault), then the court erred in failing to inquire into evidence of jury misconduct in disregarding that election and basing its verdict on an uncharged act (his pushing her onto the couch). The evidence alluded to in argument (3) is jury affidavits, on the new trial motion, indicating that at least two jurors relied on the pushing incident. The People concede some potential confusion in the prosecutor’s statement of the law but dispute everything else.
We excerpt the pertinent closing argument, by prosecutor Janice M. Brown, with italics highlighting the asserted misconduct. The excerpt followed Brown’s description of the count 1 criminal threat, and related deadly weapon use, as Butler’s statement that he could kill Caldie as he assaulted her with the knife in the kitchen.
“Count 2 is assault with a deadly weapon. And here again, the defendant did act with a deadly weapon that, by its nature, would directly and probably result in the application of force to a person, the deadly weapon being the knife; and the defendant, when he acted, was aware that the—the facts would lead a reasonable person to realize that his acts, by [their] nature, would directly and probably result in the application of force to someone.
“Again, when the defendant acted, he knew—when he put the knife to her neck, he knew that—basically that he—by his actions, he could—a reasonable person could infer that, by its nature, that it would actually and directly result in force.
“And four, when the defendant acted, he had the present ability to apply force with a deadly weapon to a person. He did have the ability. He had her backed up against the counter. He had the knife to her neck.
“Now, the People do not have to prove that he actually touched her with the knife, but in this case she testified that it grazed her. We do not have to prove that he actually intended to use force. Again, we do not have to prove that he actually used it or intended to use it, just that he had, in this case—Count 2, that he had the ability to use it. And again, no one has to be injured by his actions.
“And there are some other things that the Court will read regarding what a deadly weapon is and great bodily injury.
“With regard to Count 2, the People have met the elements.
“Now you’re going to—you’re going to also hear about something that’s called a ‘lesser-included crime,’ and a simple assault is a lesser included crime.
“What is that‌ A ‘lesser-included crime’ is what we would call a simple battery or simple assault. And in this case, for a lesser-included crime—let me put it this way. For the greater crime, which is the assault with a deadly weapon, we also have to have all the elements of the simple assault, but then there’s some additional elements that raises it to a higher level, okay, if you follow.
“It’s easy for me to say it this way. I love to cook, okay. And so one of the things that I like to cook is pizza. And for some people, you know, they like their pizza different ways. I like to put—on my cheese pizza, I like to put pepperoni, salami, the works. Okay. Think of the 245 as the works, and think of a simple assault as just a plain pizza. Those people who just want a cheese pizza, that’s one thing. If you want the pizza with everything on it, you have the cheese pizza, which is the simple assault, but you also have everything else on it.
“Okay. In other words, a lesser-included means you have to meet all the elements in that lesser crime; and then in order to make it a greater crime, then you have to add a couple elements more.
“In this particular case, a simple battery—we have met that. It’s—you know, basically the defendant, by his actions, would result—by its nature, excuse me, would directly and probably result in the application of force to a person; and he did act willfully; and when he acted, he was aware that his—his actions would lead a reasonable person to realize that, by its nature, would directly and probably result in the application of force.
“In other words, an example¾another example of simple battery in this particular case, to put some context to it, is when he threw her over the couch. That’s a simple battery. It could have been charged. It didn’t include a deadly weapon or something that—and it didn’t include something of great bodily injury. A simple push over the couch, she didn’t have any injuries, that would have been a simple battery, like the lesser-included; but in this particular case, because not only did he do that simple battery which we didn’t charge, but he also assaulted her with the knife, which is a deadly weapon that could cause great bodily injury. That knocks it up to the greater, which is charged in Count 2, which is assault with a deadly weapon.
“ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“And before I leave that area, I just want to say quickly that insulting words are not a defense, and the Court is going to read that to you. So the fact that Ms. Caldie were—after—or before she was knocked down to the couch, she made some comments about, you know, maybe sleeping with someone—you know, just saying that to him, insulting words like that, is not a defense to being assaulted with a deadly weapon or assault or battery.”^[3]
Prosecutor Misconduct
Starting with denial of the new trial motion on prosecutor misconduct grounds, Butler claims that the prosecutor’s blurring of simple assault and simple battery, as possible lesser-included offenses, prejudiced him. We temper his claim of error with this observation: “A trial judge is in a better position than is an appellate court to determine the probable effect of misconduct of counsel and his conclusion on that question will not be disturbed by an appellate court unless in the circumstances it is plainly wrong. [Citation.]” (People v. Sarazzawski (1945) 27 Cal.2d 7, 15.)
It is misconduct for a prosecutor to misstate the applicable law (People v. Boyette (2002) 29 Cal.4th 381, 435), but none of the claimed misstatements here “were objected to, nor were curative admonitions sought. As such, defendant has waived the claims on appeal. [Citations.]” (People v. Stanley (2006) 39 Cal.4th 913, 959.) His raising it for the first time in a motion for new trial came too late for the court to correct and cure any misconduct. Nor could Butler convincingly argue that the claimed blurring between simple assault and simple battery, as lesser included offenses, was beyond cure so as to render trial objections futile. (People v. Ashmus (1991) 54 Cal.3d 932, 976.) The point is thus forfeited.
Alternatively, it fails on the merits as well. Assault is an incipient or inchoate battery, and battery is a consummated assault. Thus every battery necessarily includes an assault (People v. Williams (2001) 26 Cal.4th 779, 786-787; People v. Calantuono (1994) 7 Cal.4th 206, 216-217), but the reverse is not true. Butler’s claim of misconduct is that the prosecutor suggested that the offenses were the same and, by using the battery of pushing Caldie onto the family room couch as an illustration of a simple battery, invited jurors to find that the pushing battery was in fact a lesser included offense to the charged knife assault in the kitchen. We see no such misconduct.
Our task is to assess whether there is a reasonable likelihood that the prosecutor’s remarks, in full context, led jurors to make the claimed error (People v. Schmeck (2005) 37 Cal.4th 240, 286-287; People v. Marshall (1996) 13 Cal.4th 799, 831), and we bear in mind: “[A]rguments of counsel generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence, . . . and are likely viewed as the statements of advocates; the latter . . . are viewed as definitive and binding statements of the law.^[[4]] [Citations.] . . . This is not to say that prosecutorial misrepresentations may never have a decisive effect on the jury, but only that they are not to be judged as having the same force as an instruction from the court. And the arguments of counsel, like the instructions of the court, must be judged in the context in which they are made. [Citations.]” (Boyde v. California (1990) 494 U.S. 370, 384-385.)
Returning to the quoted argument, we see that Brown had just finished describing the count 1 criminal threat as Butler’s alleged statement to Caldie in the kitchen that he could kill her, and the court 2 aggravated assault as his concomitant use of the knife. Neither was claimed to involve the preceding push onto the couch. Then came a broad statement that a lesser-included crime was “what we could call a simple battery or simple assault.” Why Brown included simple battery is unclear. She may have been thinking, as lawyers will, that any lesser included assault to count 2 in this case—whether the bear hug, twisting of Caldie’s arm, pinning her against the counter, or grazing her face with the knife—was in fact a completed application of force, and thus a battery, even if, legally, a lesser-included offense was only an assault. (People v. Yeats (1977) 66 Cal.App.3d 874, 879.) But with jurors uninformed, by argument or instruction, of a legal distinction between assault and battery, the invocation of battery was peripheral. Brown then stated, broadly and correctly, that a lesser-included offense was one that lacked one or more elements of the greater offense. No misconduct appears to that point.
Trouble arises in the next paragraph, where Brown seemingly misspoke in saying simple battery rather than simple assault: “In this particular case, a simply battery—we have met that. It’s—you know, basically the defendant, by his actions, would result—by its nature, excuse me, would directly and probably result in the application of force.” She stumbled through the court’s instruction on the elements of simple assault (fn. 3, ante), but said “battery,” and did not specify what acts she wanted the jury to consider as satisfying the lesser offense under count 2. Then she said (italics ours): “In other words, another example—another example of simple battery in this case, to put some context to it, is when he threw her over the couch. That’s a simple battery. It could have been charged. It didn’t include a deadly weapon or . . . great bodily injury. A simple push over the couch, she didn’t have any injuries, that would have been a simple battery, like the lesser-included; but in this particular case, because not only did he do that simple battery. which we didn’t charge, but he also assaulted her with the knife, which is a deadly weapon that could cause great bodily injury. That knocks it up to the greater, which is charged in Count 2, which is assault with a deadly weapon.”
What would a reasonable juror have made of the argument to that point‌ Butler contends, and the People concede for argument’s sake, that Brown erroneously suggested that assault and battery were essentially interchangeable ways of describing the same conduct. We agree. Since Brown never explained the difference between assault and battery, and since the instructions described only assault, jurors had no way to distinguish one from the other, legally, and could have inferred that the lesser-included offense to aggravated assault was satisfied by a “battery.” On the other hand, since every physical act in the assault with a deadly weapon—bear hug, arm twisting, pinning against the counter, and grazing of Caldie’s face with the knife—was actually a battery rather than a mere assault (inchoate battery), there is no way that jurors could have mistakenly applied the elements of one to establish the other. It also appears that blurring the distinction between assault and battery was not misconduct. It is misconduct to misstate “applicable law” (People v. Boyette, supra, 29 Cal.4th at p. 435), and the distinction was immaterial here, where every battery did legally include an assault, and there was no instruction on battery anyway.
Butler goes on to argue that jurors would have thought that the pushing onto the couch was the lesser-included offense, but we are unpersuaded. By twice prefacing that she was giving “another example” of simple battery in this case, jurors had to understand that the couch incident was not the act constituting the lesser-included offense, but just a further example of one. Brown also said the couch battery “could have been charged” but was not, and referred later in the same paragraph to Butler having committed “that simple battery which we didn’t charge.” This reinforced that the couch pushing was not the act on which they were to focus. So did referring to the pushing as “a simple battery, like the lesser-included” (italics added). And finally, Brown set out the elements of simple assault right after going over the very same elements as applied to the greater offense, where she spoke only of the knife assault. Thus, no misconduct appears, and any blurring of the distinction between assault and battery was immaterial.
A further comment by Brown stressed the message of CALCRIM No. 917, that insulting words are no defense to assault (see fn. 3, ante). She said: “So the fact that Ms. Caldie were—after—or before she was knocked down to the couch, she made some comments about, you know, maybe sleeping with someone—you know, just saying that to him, insulting words like that, is not a defense to being assaulted with a deadly weapon or assault or battery.” Using the closing phrase “assault or battery” (actually found in the unchallenged assault instruction; fn. 3, ante), in conjunction with the earlier remarks, could have reinforced an erroneous notion that assault and battery were the same, but this was, again, of no practical consequence and thus not misconduct. As for potentially misleading jurors that the lesser-included offense was the pushing onto the couch, we are again unpersuaded. The prosecutor did refer to insulting words (having sex with Paris) as preceding the push onto the couch, but that was the only instance of such insulting words, words that did seemingly precipitate all physical assaults in the case, including the count 2 knife assault.
Further considering the effect of instructions, we are reinforced in discerning no prejudicial misconduct. Unlike the prosecutor’s remarks, the instructions were furnished to the jury in written form for study during deliberations. Jurors were informed that the comments of counsel were not evidence and were not to be followed if they conflicted with the court’s instructions. (Fn. 4, ante.) Battery was not defined, and nothing in the instructions on the count 2 aggravated assault, or the lesser-included simple assault, suggested that the lesser-included offense could be based on anything but the same underlying conduct as the greater offense.
In her remaining closing and then rebuttal arguments, Brown never returned to the subject of the lesser-included offense, but focused on the greater assault. Defense counsel also did not mention the lesser offense; he attacked Caldie’s credibility and pointed out conflicts or inconsistencies in the testimony.
“In the context of the whole argument and the instructions, we see no reasonable likelihood [citation] the jury construed the prosecutor’s remarks” (People v. Marshall, supra, 13 Cal.4th at p. 831) as Butler urges. “Accordingly, [he] fails to establish either misconduct or, it follows, ineffective assistance of counsel” (id. at p. 832) in his counsel’s failure to object on that basis below. We add that trial counsel was in a superior position to ours, able to hear vocal inflections of the prosecutor and judge juror reactions that may have reduced any cause for alarm. (People v. Klvana (1992) 11 Cal.App.4th 1679, 1718.)
Of course, on the motion for new trial, trial counsel offered evidence that some jurors had in fact predicated the simple assault verdict on the pushing onto the couch. However, for reasons expressed in the juror misconduct portion of this opinion (post), the trial court was bound—as we are bound—to reject such evidence (Evid. Code, § 1150).
We also reject Butler’s claim that, notwithstanding inadmissibility of that evidence, prejudice “is apparent simply on the basis of the verdict itself.” Acquittals on the criminal threat and aggravated assault counts could have been based on reasonable doubt about the nature of the threat or use of the knife. There is no authority or logic to Butler’s suggestion that a jury rejecting knife or threat use cannot convict of simple assault. It obviously does not take verbal threats or a knife to commit assault, and simple assault is necessarily included in aggravated assault. (People v. Yeats, supra, 66 Cal.App.3d at p. 879.)
Unanimity Instruction
Butler’s claim that sua sponte instruction on unanimity was required, due to prosecutor failure to elect which act of simple assault was the lesser offense, suffers first from lack of misconduct inviting use of the push onto the chair, and second, from a mistaken assumption that he offered admissible evidence that one or more jurors relied on him pushing Caldie onto the couch. We reject the admissibility assumption in our discussion of juror misconduct (post). Nor do we see adequate support for his idea that jurors could have found the lesser to be the very earliest act of Butler pushing Caldie into the kitchen table or chair. That act was not mentioned in jury argument on either side.[5]
Turning then to the acts immediately surrounding the charged knife assault, the possibilities when the case went to the jury were (1) the bear hug, (2) twisting Caldie’s arm behind her back, (3) pinning her to the counter, and (4) holding the knife to her face. A trial court does have a duty to give a unanimity instruction, without request, when the circumstances warrant it (People v. Davis (2005) 36 Cal.4th 510, 561), and such a claim is cognizable on appeal, without objection below, if it affects a defendant’s substantial rights (§ 1259). On the facts, however, there was no duty to give the instruction, and no effect on Butler’s substantial rights.
There are exceptions to the rule that a court must give a unanimity instruction when faced with multiple acts and lack of an election. The pertinent one here is when “the case falls within the continuous-course-of-conduct exception, which arises ‘when the acts are so closely connected in time as to form part of one transaction’ [citation] . . . .” (People v. Jennings (2010) 50 Cal.4th 616, 679.) The only reasonable conclusion from Caldie’s testimony is that the bear hug, arm-twisting march to the kitchen, pinning against the counter, and grazing with the knife were part of a continuous course of conduct, with no temporal separation. It would be a closer question whether the preceding push onto the couch, seemingly seconds earlier, was also part of that course of conduct, but we need not decide since we have found no reasonable likelihood that the prosecutor’s argument, in the full circumstances, invited jurors to rely on that incident.
Failure to give a unanimity instruction was not error.
Juror Misconduct
The court denied the motion for new trial without comment or an evidentiary hearing, and with both sides submitting without oral argument. We suspect that the denial was because the affidavits submitted by Butler (the People submitting none) were largely inadmissible under Evidence Code section 1150, subdivision (a): “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.”
Oddly, the People fail to claim any such problems on appeal, and raised no such objections below. The court did not issue a ruling on the affidavits, but Butler urges, as he did below, that they were admissible. He seeks our independent determination, and we oblige. Like a trial court, we are duty bound to determine the matter, whether or not asked to do so (e.g. People v. Collins (2010) 49 Cal.4th 175, 237, 249-250 (Collins)), and our inquiry here is dispositive of the juror misconduct question.
“ ‘[W]hen a criminal defendant moves for a new trial based on allegations of jury misconduct, the trial court has discretion to conduct an evidentiary hearing to determine the truth of the allegations.’ [Citation.] However, in conducting that hearing, the trial court ‘must take great care not to overstep the boundaries set forth in Evidence Code section 1150.’ [Citation.] Evidence Code section 1150 ‘distinguishes “between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved . . . .” ’ [Citation.] ‘ “The only improper influences that may be proved under [Evidence Code] section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration.” ’ [Citation.]” (Collins, supra, 49 Cal.4th at p. 249.) The same rules apply, as here, to statements submitted with motion papers to seek a hearing. (People v. Danks (2004) 32 Cal.4th 269, 301-302 (Danks).)
The defense submitted statements from three jurors, each consisting of responses to identical questions. Of the two questions pertinent to the misconduct claim, the first asked: “Why did you convict Mr. Butler of simple assault‌” Juror No. 3 answered: “Mr. Butler acknowledged he shoved her onto the couch during an argument. Ms. Caldie’s testimony reinforced Mr. Butler’s admittal [sic]. From this it was clear that his conduct and actions rose to the level of the definition the Judge read aloud and provided us in writing in the Jury room. At no time did either attorney object to the definition therefore I used that as supporting the finding of guilt for Mr. Butler in the trial.” Juror No. 10 wrote: “Because he committed the act—pushing, using force, against Ms. Caldie.” Juror No. 11 answered, more vaguely: “The law said I had to.”
The second question asked: “What evidence did you consider in deciding to convict Mr. Butler of simple assault‌” Juror No. 3 wrote “Mr. Butler’s own statements were the evidentiary proof.” Juror No. 10 cited: “· Ms. Caldie’s testimony (‘He pushed/shoved me—lifted me and threw me] onto the couch’ [¶]· Mr. Butler’s testimony (‘I pushed her onto the couch & she bounced back up’ [¶]· Court [d]efinition of simple assault (‘Any use of force with or without intent to cause injury’” Juror No. 11 was again vague, “He admitted to touching the plaintiff [sic].”
A completely unaddressed threshold issue is that no juror made his or her statement under oath or affirmation (Evid. Code, §§ 165, 710); nor did any of them state that they would be willing to testify. But assuming for sake of argument that this was not a fatal defect in the circumstances (see, e.g., People v. Hayes (1999) 21 Cal.4th 1211, 1255 [when criminal trial juror misconduct allegations “raise a presumption of prejudice, the court is not limited, as it would be in a civil case, to consideration of evidence presented by affidavit or declaration,” but may hold an evidentiary hearing, “at which jurors may testify, to determine the truth of the allegations”]), the statements were inadmissible for other reasons, and did not merit an evidentiary hearing.
The first question—why they convicted Butler of simple assault—called directly for their subjective reasoning processes, and the answers revealed them. Juror No. 3 said Butler admitted shoving Caldie onto the couch, thus meeting the assault definition; Juror No. 10 said it was because Butler pushed and used force against her. These unvarnished instances of mental processes and subjective reasoning were completely inadmissible. (E.g., Danks, supra, 32 Cal.4th at pp. 300-302; Collins, supra, 49 Cal.4th at p. 250.) These reasons and mental processes were not open to sight, hearing, or other senses so as to be corroborated. Butler cites cases where jurors reported seeing or hearing other jurors discuss or do things amounting to misconduct. Here, by contrast, all three jurors gave nothing but their own reasons and thought processes; not one claimed to have heard or seen any such conduct by other jurors. Juror No. 11’s vague statement that she did what the law required was (a) not probative of reliance on the couch-pushing incident and, in any event, (b) just another example of reasons and mental processes.
The second question similarly asked for reasons and mental processes, and elicited completely inadmissible responses. Asked what evidence they relied on, two jurors specified what testimony they used, and the third juror said, less specifically, that Butler had admitted pushing Caldie. Juror No. 10’s stated reliance on the court’s definition of simple assault was another form of forbidden mental processes. (People v. Steele (2002) 27 Cal.4th 1230, 1261.)
There was a fourth affidavit, from trial counsel, that was properly sworn. However, counsel’s summary of what jurors had told him was mere hearsay (People v. Box (2000) 23 Cal.4th 1153, 1222; People v. Hayes, supra, 21 Cal.4th at p. 1256) in addition to revealing forbidden reasons and mental processes. An even further obstacle is that counsel inexplicably recited what jurors told him as being “upon information and belief,” thus strangely removing the juror statements from his personal experience.
For all of the above reasons, the denial of the motion for new trial on juror misconduct grounds was not error.
Disposition
The judgment is affirmed.



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Kline, P.J.


We concur:


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Lambden, J.


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Richman, J.




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