P. v. Hinton









Filed 9/7/11 P. v. Hinton CA1/5





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. QUARTUS HINTON, Defendant and Appellant.

A123280 (Solano County Super. Ct. No. FCR237851)

Quartus Hinton appeals from a judgment of conviction and sentence imposed after a jury found him guilty of voluntary manslaughter. He contends the court erred in denying his motion for a new trial based on purported juror misconduct and newly discovered evidence. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
An amended information charged Hinton with the murder of Kaliah Harper and alleged that he personally used and discharged a firearm in the commission of the offense. (Pen. Code, §§ 187, subd. (a), 12022.5, subd. (a)(1), 12022.53, subds. (b), (d).)[1] The information also alleged that Hinton had suffered a prior strike conviction (§ 667) and a prior prison commitment (§ 667.5). The matter proceeded to a trial by jury.
At the trial, there was no dispute that Hinton shot and killed Harper, a Richmond police officer with whom he had an ongoing relationship. The prosecutor contended that Hinton was guilty of lying-in-wait first degree murder. Hinton contended that he acted in self-defense, shooting Harper six times because he believed she was about to shoot him.
A. Prosecution Case
Harper was a narcotics agent with the Richmond Police Department. Hinton was a felon and parolee. Their romantic relationship began in February or March 2006 and lasted about six months.
1. Hinton’s Suspicion of Harper’s Infidelity
In the months before he killed Harper, Hinton suspected that she was being unfaithful. He told his brother Louis that Harper was, in defense counsel’s words, “messing around on him.”
Harper’s mother, Beverly Moore, testified that at around 3:00 a.m. one morning a few months before the killing, Hinton banged on the door of the home she and Harper shared. Hinton yelled at Harper, accusing her of having another man in the house. There was no other man there.
In September 2006, Hinton called Roderick Booker, the husband of Harper’s best friend Shalece Booker, and asked several times if he and Harper were ever romantically involved. Roderick denied it.[2]
In October 2006, Hinton called Roderick again, claiming he had just seen Roderick enter a hotel room with Harper. Roderick was at a construction jobsite at the time. Hinton continued to accuse Roderick for about five minutes, until Roderick told Hinton to knock on the hotel room door. Hinton said he would call Roderick back, but he never did.
At some point, Harper told Shalece that she ended the relationship with Hinton because he was accusing her of being with Roderick.
2. Hinton’s Call to Harper’s Watch Commander and Claims of a Car Chase
Hinton told his brother Jerald that he had called the Richmond police department, talked to Harper’s watch commander, and asked whether she could lose her job if she were dating a felon.[3]
Because he made this call, Hinton claimed, there were people trying to kill him. For weeks he told Jerald that Richmond gangsters were out to kill him, attributing it to Harper as a result of his calling the watch commander.
In particular, Hinton told Jerald about a car chase that began in Vallejo and continued almost to Sacramento, on the night before their brother Darius’s baby was born (November 9, 2006). In describing the event, Hinton was frantic, scared, and paranoid.
On November 10, 2006, Hinton spent the night at the home of his brother Louis. He told Louis as well that people in cars had chased him to Davis and back to Vallejo. Hinton feared for his life, because of the call he had made about her to Harper’s job. Hinton was stressed, irrational, and scared; Louis had never seen him so upset.
Hinton informed Louis that he had a gun, because he was frightened and wanted to kill himself. Concerned, Louis took the gun from him. It was a .45 caliber handgun, in a bag with ammunition.
3. Hinton Invites Harper to a Funeral and Kills Her
About two weeks later on November 23, 2006 (Thanksgiving Day), Harper told Shalece that Hinton had asked her to attend a funeral service the next day for two of his nephews. After numerous texts between Hinton and Harper that evening, Harper agreed to go.[4]
On the morning of November 24, 2006, Hinton asked Louis to return the gun. Louis initially refused but, after Hinton’s third attempt, finally relented. Hinton claimed (falsely) that he needed to give the gun to someone else. Louis gave Hinton the bag containing the gun and the ammunition.
Hinton and Harper attended the funeral, arriving and departing separately. After the funeral, Hinton and Jerald went to the burial, while Harper went home.
On the way to the burial, Hinton appeared frantic. He told Jerald that he was being harassed and receiving crank calls. He claimed Harper had people who were trying to get him, and he did not know whom to trust. Jerald noted that Hinton had a gun.
At 10:42 a.m., Harper sent a text message to Hinton: “Call me when u get a moment. I saw u talking to Darius, so I am giving u your family time[;] love u and I will talk 2 u soon.”
Around noon, Harper was at home with her mother. Hinton called repeatedly, and Moore could hear part of the conversation because Harper put some of the calls on her speaker phone. Hinton asked Harper to go to the “repast.”[5] At first Harper replied that she was tired and not going to attend, but after Hinton kept asking her, she decided to go. Harper told Moore she would be right back. Moore never saw her daughter alive again.
The repast was held at the Fairfield Community Center. Hinton was standing with Jared and Darius outside the center before Harper arrived. At one point, Hinton pointed out a suspicious man across the street, wearing something like a NASCAR jacket and pretending to tie his shoe. Hinton was nervous when he saw the person, but he remained outside. The man flagged down a car and got in; the car made a U-turn and left.
Harper arrived at the community center in her “VW bug.” She and Hinton entered the center at 2:39 p.m. According to Hinton’s brother Louis, Hinton was easy-going at the repast. According to Carrie Mount, who served food at the repast, Hinton was pacing and appeared agitated. Mount heard Hinton ask to speak with Harper outside.
Hinton and Harper left the center together at 2:42 p.m. Louis
testified that Hinton and Harper were arguing as they left. Erna Watson-Gordon testified that Harper was talking on the phone and said something like, “They probably don’t think she’ll make the right decision.” In any event, Harper got into the driver’s side of a gold VW bug; Hinton got into the passenger side.
The shooting occurred at 2:48 p.m. or a minute or two earlier, roughly six minutes after Hinton and Harper left the center. Louis heard gunshots as he was taking his children inside the community center, and looked over to see Hinton on the driver’s side of Harper’s car, firing toward it.
Mount heard two gunshots while she was in the parking lot. She looked up and saw Hinton behind the VW bug, about two feet away from it or a little further, holding a gun. He then fired two or three more shots in the direction of the car.
Watson-Gordon heard a noise that sounded like firecrackers, got out of her car, and saw smoke coming from the VW. She walked toward the smoke but stopped, because Hinton came out of the car, stood beside it, and yelled “Bitch.” Harper lay face down on the ground next to the driver’s side of the car. Hinton went across the parking lot to a green car; Watson-Gordon yelled for help and tried to dial 911.
4. The Crime Scene
Police found Harper, lying face down on the ground behind her gold VW bug, dead. The driver’s door of the VW was open. Inside the car, police found an open purse on the center console. There was no gun in the purse or in the car.
Two bullets were recovered from the interior of the front seat and from an armrest next to it. Two shell casings were on the dashboard on the passenger side and on the center console between the front seats. Police found five .45 caliber shell casings on the ground next to Harper’s body.
5. The Police Recover the Murder Weapon
At about 2:45 or 3:00 p.m. on November 24, 2006, Gwendolyn Ellis observed a green Ford Taurus make a wide and wild turn and stop abruptly. Hinton got out of the car, ran across the street, and threw something in the sewer. Ellis reported the matter to police, and officers recovered a handgun from the sewer. It was not disputed that the gun was the weapon used to kill Harper.
6. The Police Recover Harper’s Firearms at Her Home
In a search of Harper’s home on November 24, 2006, police recovered Harper’s duty weapon. They forgot to search the car in the garage, which contained a locked white Ford Expedition that was assigned to Harper for police work. Returning to the house on November 30, the police recovered various items from the Ford Expedition, including two firearms: a .40 caliber semi-automatic pistol and a .38 caliber five-shot revolver.[6]
7. The Autopsy
An autopsy determined that Harper was shot six times. Two of the gunshots were fatal. One of the fatal shots entered her right upper back, passed through her upper abdomen and exited on the left side of her lower chest. The other fatal shot entered on the top of her right chest, passed through the upper part of her heart, damaged the aortic valve area, passed through her liver and stomach, and exited at the front of her abdomen.
If, as the coroner was asked to assume at trial, Harper was sitting in the driver’s seat of the car when two shots were fired, the shooter fired them from the passenger seat, and the shots caused bullet holes in the bolster of the driver’s seat, then one of the shots fired inside the car was most consistent with the fatal shot that entered Harper’s right upper back.
8. Hinton’s Statements to the Police After His Arrest
Hinton was arrested on November 25, 2006. He gave two statements to the police: one on November 25 for about an hour, a second on November 27 for about an hour and a half. Both interviews were recorded on DVDs and shown to the jury. The transcripts of the interviews were admitted as Court Exhibits 4 and 5.
In both statements, Hinton claimed that he broke up with Harper when he learned that she was in a hotel with another man. Harper wanted to reconcile with him, but he did not want her back.
Also in both interviews, Hinton stated that he called Harper’s watch commander. In the first interview, he asserted that he had previously had problems with narcotics and “mess[ed] up” with drugs when he was dating Harper. Harper told him that she could put him away for life because he was on parole. Hinton felt that he “had been taunted and taunted,” and Harper was “playing with [his] freedom.” His “only rebuttal” was calling her watch commander.
In his second interview, Hinton explained that Harper had called the police on him at her house, and he felt she was “full of shit.” He was angry because Harper was not honest with him and she threatened to tell his parole officer about his drug use. Because he was angry at Harper, Hinton called her watch commander.
In both statements, Hinton said he never should have called Harper’s watch commander. The call gave Harper reason to get rid of him, because it jeopardized her career and destroyed her credibility in a lawsuit she had initiated for racial discrimination.
Hinton surmised that Harper had people come to his house to harm him. As he explained in his second interview, he believed that Harper wanted to “get rid of [him], kill [him]” and had people chase him from Vallejo towards Sacramento and back. On that occasion, Hinton explained, people in three cars appeared in front of his house in Vallejo – where only Harper knew he was staying. They chased him at 110 miles per hour from Vallejo to UC Davis, after which he drove on back roads and was still followed. Harper was behind the chase, Hinton believed, because it occurred when “Richmond thugs” came to his house two days after his call to the watch commander. Hinton was angry that Harper wanted to kill him and had somebody else wanting to kill him.
Hinton continued to call Harper, but only to find out if the “problems” were over. He admitted to her that he made a mistake, promised not to do it again, and asked her why she did not “let it go.” Hinton repeatedly asked Harper to “just call it off,” “stop” it, and “squash it.”
Harper claimed that she did not know what Hinton was talking about. Hinton reasoned, however, that she could not admit having someone after him because she was a police officer. He noted that she would keep him on the phone for a long time and repeatedly ask him where he was; as soon as he told her, “they” would come.
Because he feared for his life, Hinton got the gun (from Louis) on the morning of the killing. He loaded the gun and carried it because he “was in fear of the fact that these dudes was all . . . coming.”
Hinton acknowledged that Harper attended the funeral at the church. He called her to convince her to come to the repast as well, because he wanted her to be there. When she arrived at the repast, she accused him of telling her to go to Vallejo (instead of Fairfield), but he denied telling her that.[7] In his interviews with the police, he stated both that he thought Harper was there to kill him that day, and that she was not.
In his second interview, Hinton told police that there was a white man with tattoos “right behind” him as he and Harper left the community center. Harper wanted Hinton to sit down, but he did not want to do so because he thought the man would shoot him in the head and Harper would then shoot the man. The man asked Hinton what time it was; Hinton did not respond, thinking he was “affiliated with Richmond.” Harper had her hands on her purse the whole time. Hinton appeared to say that he thought Harper was going to have “them” kill Hinton in front of his family.
In the first interview, Hinton asserted that he did not see Harper with a gun and he did not make any threats before he shot her. In the second interview, however, he claimed he was scared because he knew she carried a gun and believed she “was getting to her gun.” He claimed she “already had her hand in her purse.”
Hinton believed he probably shot Harper twice in the car, and she tried to get out. His gun jammed, and he un-jammed it. He walked around to her side of the car, where she was “[i]n shock and standing,” and he “[s]hot her some more.” He believed he hit her once in the head. Then he left in his green Taurus and put the gun in the storm drain.
When asked what was the direct threat that drove him to kill Harper, Hinton answered: “The threat was just to—it was just like, go to the head of the problem . . . because I couldn’t fight all of ’em. I couldn’t fight them[;] they were coming out of everywhere man, I mean as far as like the (Richmond) cats man. . . . I mean come on man, they’re a mob. . . .” He continued: “[T]he only direct threat was the dudes out there that were all forming around there and everybody.” His excuse for what he did was that he “was at [his] wits end . . . with the fear with the running.” He felt he could not go anywhere because he was on parole and Harper could “get into [the] little main frame and figure out where I’m at, at any given time.” He killed Harper because “these dudes are . . . I don’t know what’s gonna happen, period. I know that they tried to kill me before.” Denying that Harper’s “hold[ing his] being on parole over [his] head” played any part in his killing her, he asserted that he killed Harper because she wanted to kill him; in fact, she had said she would kill him.
In the second interview, Hinton added: “If I go to the head of the problem, then it would be over. . . .” The killing was not “thought out,” because if it had been, he would not have killed Harper in front of everyone.
B. Defense Case
1. Hinton’s Story
Hinton testified at trial. He acknowledged that he was convicted of burglary in 1999 and was on parole when he met Harper, a narcotics officer, in February or March of 2006. They met on an internet dating site and fell in love.
According to Hinton, Harper was “real big on” monogamy, and they had an agreement to date only each other. At the beginning of their relationship, however, Hinton asked Roderick Booker if he had ever slept with Harper, because “some women are swingers.”
At some point, Hinton caught Harper in a liaison with another man at a motel. At first he assumed she was with Roderick, because he saw a car that Roderick’s wife drove. He sent a text message to Roderick, Roderick called back, and Hinton asked, “Why don’t you come outside.” Roderick replied, “I don’t know what you’re talking about.” The conversation ended when Harper came out of the room with another man. Hinton claimed this was the only time he thought Harper was “with” another person.[8]
Hinton broke up with Harper soon afterward, in October 2006, because he no longer trusted her.
Hinton and Harper continued to have phone conversations, but they were hostile. Hinton told her that, because she did what she did, he was going to see other women. Harper responded that he would be “writing them bitches from jail.” Harper had also wanted Hinton to stop using marijuana, and she threatened to tell Hinton’s parole officer about his drug use. This angered Hinton. Because he was on parole and she was a police officer, he believed she could indeed send him to jail.
On one occasion, Hinton suspected that a man Harper was talking to on the phone was a lover, despite her claim that he was an informant. Hinton wanted Harper to prove he was an informant, so she allowed him to pretend he was a police officer and talk on the phone to the informant. The informant told Harper’s supervisor, and Harper said she had to deny it.
On another occasion, Hinton told fellow parolee Terry Brown that Harper was an undercover police officer and, if he “slipped off a pad,” Harper could “get him out.” Harper became upset with Hinton when she received a call over the summer about Brown, who had been arrested and apparently mentioned Harper’s name to law enforcement.[9]
On November 7, 2006, at 3:18 a.m., Hinton called the watch commander of the Richmond Police Department. He did so because he did not like how Harper was treating him, and he wanted to prevent her from putting him in jail for seeing other women or using drugs. He was trying to keep Harper “at bay with her threats” and make a record at the same time.
In the call to the watch commander, Hinton gave his name, said he was on parole, and said he was dating a Richmond police officer who was threatening to put him in jail. He did not give Harper’s name, but he did say she was a detective who worked narcotics. He also said he had talked to her confidential informant.
At 3:27 a.m. on November 7, 2006, feeling guilty about calling her watch commander, Hinton called Harper and spoke to her for 27 minutes. Asked if he thought she would already be awake, Hinton answered, “She would get up for me.” Asked if the phone call needed to be made at 3:27 a.m., Hinton said he wanted to talk to her. He then drove to Harper’s house and said, “Baby, I’m out front.” When he eventually told her about his call to the watch commander, she became angry.
On November 9, 2006, Hinton was driving in Vallejo, where he lived with his brother Darius, when he noticed a car following him close to his bumper. Another car attempted to trap him by veering in from the side. Hinton maneuvered away by accelerating and driving through red lights. The cars – a white van and a tan Cadillac – followed him. They were driven by “Richmond dudes” whom he associated with Harper. He believed Harper sent them because he had called the watch commander.
The chase proceeded to Davis and then back to Vallejo. The pursuers were shooting at him; although he did not see a gun, he heard the shots. He thought he was going to die.
Around midnight he called Darius, who told Hinton to go to the hospital (where Darius was awaiting the birth of his daughter). Hinton drove into the parking lot of the emergency room. He jumped out of the car and ran to the emergency room towards Darius. Screaming, he told everyone they were shooting at him. He told the police that his girlfriend had people after him.
At 1:35 a.m. on November 10, 2006, Hinton sent a text message to Harper: “U just missed.”
Hinton obtained a gun with a loaded clip and a box of bullets from “Slim.” He spent November 10, 2006, with his brother Louis in San Mateo, because he believed the people sent by Harper were going to kill him. They discussed Hinton entering a drug program, where he could be anonymous, or going to live with his father in Michigan.[10] Hinton left Louis’s house on November 11, 2006, but Louis did not let him take the gun.
Hinton changed his phone number because he did not want Harper tracking him: he believed she could locate him when his phone was in use. He spent November 11, 2006, in Sacramento, and the next two nights with his daughter Legacy and her mother Michelle at their home in Vallejo.[11] Hinton wanted to be around his daughter because he thought he might soon be killed. Later believing that his pursuers knew Michelle’s address, he left on November 14.
On November 14, 2006, Hinton obtained permission from his parole officer, Jennifer Brittenum, to move to Sacramento. He leased an apartment in Sacramento that day.[12]
Hinton continued to call Harper to “soothe the issue,” telling her he would never call the watch commander again. At Hinton’s request, his sister Desiree also called Harper to “smooth it out.” With Hinton’s permission, Desiree gave Harper his new telephone number.
Harper told Hinton that she did not know what he was talking about and that he needed to watch himself. She claimed he brought the car chase upon himself. Hinton “asked her to call it off,” but Harper was not receptive.
As of November 22, 2006, Hinton still had the ring that he had given Harper and she had returned. Even though she did not ask for it, he wanted to give it back to her about a day or two before he killed her, so she could be happy and “maybe . . . squash the beef that was going on with these people trying to kill me.”
Hinton spent Thanksgiving (November 23) at his home in Sacramento. He refrained from going to the homes of his relatives because he did not want to put them in danger. At 6:08 p.m., he received a text message from Harper, wishing him a happy Thanksgiving. Because nothing had happened since the car chase, he thought things might be getting better, so he texted back: “Happy Thanksgiving to you and your family, Baby. Just got back. Got Legacy with me, so call you as soon as we settle in. I love you. Are you going to the serve [sic]. He said falsely that he had Legacy with him, because he did not want Harper to know where he was, and he said he loved her only to appease her. By “serve,” he meant funeral “service.”
By his text, Hinton wanted to know if Harper was going to the funeral service, but, he claimed, he did not actually want her to go. Nonetheless, he confirmed that the funeral was the next day at 9:30 a.m. She replied, “I will get details when you call, and stop texting.” At 10:18 p.m., she sent another message: “I don’t get you at all. Going to bed.”
Thinking Harper was mad because he had not called, Hinton called her. Between 11:33 p.m. and 11:45 p.m., they had a series of phone calls. Among other things, Harper wanted to know why Hinton had not gone to his mother’s house for Thanksgiving. Hinton wondered how she knew that.
While speaking with Harper on the phone, Hinton received calls from another number; he put Harper on hold and called the person back. As he clicked back to his call with Harper, he heard the phone ringing in the background and Harper saying to turn it off. Hinton concluded it was his call ringing in the background and, therefore, the person who was calling him was with Harper. The person on the other line identified himself as “Rico” and hung up. Hinton was aware that Harper knew a person by that name, believed he was one of the people she was using to harass him, and concluded Harper was trying to set him up. His last call with Harper ended at 11:45 p.m.
Around 3:00 a.m. on November 24, 2006, Hinton saw a car without lights pull up outside his home. He saw “some guys,” one of whom had a gun. At 3:02 a.m,, he called 911, said his name was “Johnson,” gave his address but not his apartment number, and reported that he had seen black males whom he thought had guns. He mentioned a Taurus and a van, which was the vehicle that had chased him in Vallejo.
Frightened, Hinton left his apartment and drove to a truck stop, where he called Louis and told him to bring the gun to their mother’s house in Vallejo. Louis complied, giving Hinton the gun, clip, and bullets in a plastic bag. Hinton falsely told Louis he was going to return the gun to “Slim.” Afraid for his life, he loaded the bullets into the clip and placed the clip in the gun.
Hinton drove to Darius’s house to retrieve his suit for the funeral that morning. Darius was not home. About two blocks away, Hinton observed a couple of men in the white Astrovan that had chased him and that had been at his Sacramento apartment at 3:00 a.m. He believed Harper had sent the men, because she had been trying to learn his whereabouts from Desiree and she knew he had to go to Darius’s house to get his suit.
Hinton and Harper had about eight phone conversations that day (November 24). The first occurred at 7:31 a.m., when Harper called him to ask if he was going to Darius’s house. He called her at 7:53 and she returned his call at 8:52, asking whether he was going to the funeral. He thought she was trying to set him up to kill him.
Hinton nonetheless went to the funeral, but did not see Harper there. At 10:42 a.m., he received a text from her that read: “Call me when you get a moment. I saw you talking to Darius, so I am giving you your family time. Love you, and I will talk to you soon.” He thought she was crazy because he had not seen her at the funeral, and he did not think she loved and cared about him.[13]
After the funeral, Hinton went to the burial. He did not see Harper there. Then he went to his mother’s house and later to the repast, to appease his mother. After calling Harper at 12:24, 1:13 and 1:14 p.m., Hinton arrived at the repast about 1:30 p.m.
About 10 minutes before he arrived, Hinton told Harper the repast would be at 1000 Kentucky Street in Vallejo, rather than the correct address of 1000 Kentucky Street in Fairfield. At trial, he claimed that he gave her the wrong address because he did not want her to know where he was; he did not think it was appropriate for Harper to attend, since Michelle was going to be there. Because it was 20 or 25 miles from Vallejo to Fairfield, he thought it would take Harper over 20 minutes to get to the right address.
Hinton was standing with Darius and Jerald at the entrance to the community center when he saw a light-skinned black man across the street, wearing a white t-shirt and a racing jacket, tying his shoe. The man appeared to be flagging someone down, when a grayish-white Dodge Magnum arrived and stopped in front of Hinton. The man got in and gestured for Hinton to approach. The Dodge then drove to Hinton’s car, and the man got out, looked at Hinton’s car, and returned to the Dodge and left.
Harper called Hinton at 1:54 p.m. Hinton called Harper at 1:59, she called him at 2:05, and he called her at 2:12 and again at 2:29. In one of these conversations, Hinton told Harper that he had seen the people across the street, including the man in the NASCAR jacket, whom he associated with Harper. He wanted to let Harper know that he saw what was going on, hoping they would stop.
Harper arrived at the repast around 2:30-2:45 p.m., roughly an hour after Hinton and about 15-20 minutes after their last call. Hinton was surprised when Harper appeared; he never gave her the right address and never told her he wanted her to come.
Hinton met Harper when she arrived, and they walked in the community center together, as shown on a video taken by a security camera and played at trial. Harper was angry and stand-offish. Concerned that she not make a scene around his family, he lied and denied that he had given her the wrong address.[14] He was not worried at that point about anything happening to him, because he had a loaded gun.
After about five minutes, Hinton and Harper walked outside because she wanted to talk. After leaving the center, they turned right and went out of view of the camera. The video showed a man walking out of the community center after them, turning right, and proceeding out of the camera’s view.
Harper wanted Hinton to sit on a bench around the corner. He wondered why she wanted him to sit there, and why she was “looking around.” He had an uneasy feeling and did not trust her.
A few seconds later, the man who had left the center behind them approached Hinton from behind. Hinton was surprised and scared. The man was not part of the family and was not dressed like anyone else at the repast, and he had his hand in his pocket. The man asked, “What time is it‌” Harper did not respond.
Harper suggested to Hinton that they go to her car. Hinton thought she might have wanted to help him or perhaps no longer wanted “them” to hurt him. Frightened, Hinton went with Harper to her car.
Harper got into her car on the driver’s side, and Hinton entered on the passenger side. Harper reached for her purse. Hinton, thinking that her gun was inside the purse and she was about to shoot him, used his left hand to push Harper’s hand down and keep it in the purse.[15] Without asking what she was doing or telling her to stop, he pulled out his gun with his right hand and fired two shots from about a foot away.
Harper was unsure if he hit her, since he was looking the other way when the gun recoiled. When she got out of the car, he thought the shots might not have struck her, and he did not know whether she was wearing a bullet proof vest. He still believed Harper was going to shoot him, because he had seen videos of how she had been trained to “spin and shoot.”
So Hinton un-jammed the gun, got out of the car, and went around the back. Harper was coming toward him, though standing. He could not see her hands. Holding his gun in his right hand, but looking away to his left, he fired four or five times with “blinding speed” from eight or nine feet away. He stopped shooting when she fell.
Hinton ran to his car and drove away–because he saw the light-skinned black man and the white Dodge Magnum. When he drove out of the parking lot, however, he looked back and no one was there.
Hinton disposed of the gun, because he was on parole, the owner of the gun was his friend, his brother brought him the gun, he did not want to fight anymore, and he ran “to the furniture place.” Hinton called his friend Slim to pick him up.
When Hinton surrendered to police, he pretended to have a gun because he wanted the police to kill him. He preferred death to life imprisonment, which he thought he faced because he was not supposed to have a gun and he shot someone who died. He did not think he could use a gun in self-defense, because he was not supposed to have a gun.
2. Sister Desiree’s Corroboration
Hinton’s sister Desiree was friends with Harper. Desiree testified that on October 30, 2006, after Hinton and Harper broke up, Harper sent Desiree this text message: “No need to respond. Just tell him I miss him dearly and would never do anything to hurt him ever.” Desiree never heard anything about Hinton being jealous.
November 13, 2006, was Hinton’s birthday. Harper called Desiree that day and asked where Hinton was.
Desiree had other conversations with Harper, although the record is not clear when they occurred. At some point, Harper called and was mad because Hinton phoned her watch commander and Harper did not know why. In some conversation, Harper denied that she had people following Hinton and told Desiree: “Your brother thinks I got people following him, but if I want to do something to him, I’ll do it to him myself.”
Desiree and a friend, Season Turner, testified that two days before the funeral Hinton expressed fears for his safety because of Harper.
At 12:02 a.m. on November 23, 2006, (the day before the funeral) Desiree had a 38-minute phone conversation with Harper. They talked about the boys who had been killed. In addition, Harper asked where Hinton was living and whether he was staying with another woman; Desiree said he was in Sacramento.
3. Car Chase Testimony
Hinton’s brother Darius received a call from Hinton around midnight on November 10, 2006. Hinton was frantic. He said he was driving and was being followed by people who were shooting at him and trying to kill him. Hinton explained that Harper had people after him because of the complaint he made.
Darius told Hinton to come to the hospital, where Darius’s daughter was being born. Hinton drove up very fast and erratically. Darius went outside to meet him, but Hinton yelled at Darius to get back into the emergency room. He was erratic and very scared. Darius did not hear any shots or see anyone pull in behind Hinton.
Hospital worker Dick Montanez testified that Hinton seemed agitated and in fear for his life. Hinton said shots were fired at him outside the emergency room, but no one else reported shots and Montanez did not hear any.
4. Other Testimony
Darius was with Hinton outside the community center at the repast. About the time that Harper arrived, Darius saw a black man in a NASCAR jacket, pacing back and forth and flagging people down. The man looked in their direction, and Hinton appeared worried.
Michelle Graham saw Hinton and Harper at the repast. Hinton seemed much calmer than he had been at the funeral but still seemed cautious. Harper seemed upset. Desiree testified that Hinton did not seem nervous, but Harper was “not normal.”
After the shooting, Pauline Underdown saw two men by Harper’s VW, who seemed out of place and suspicious. Her daughter also people who seemed not to “fit in.”
Lee Hinton, appellant’s father, received a call from Hinton a few hours after the shooting. Hinton said he had felt he was going to be killed and that it was “either him or her.” Hinton asked Lee: “Did you see the two guys outside‌ [Harper] brought them there. The plan was they were going to kill me, and [Harper] was going to shoot them.”
C. Rebuttal
Defense investigator Terry J. Hicks interviewed Lee Hinton. Lee never told Hicks that Hinton told Lee he had to shoot Harper and it was either her or him.
D. Jury Verdict
On July 15, 2008, the jury returned its verdicts. As indicated on a verdict form dated July 14, 2008, the jury found Hinton not guilty of first and second degree murder. As shown by a verdict form dated July 15, 2008, the jury found him guilty of the lesser included offense of voluntary manslaughter (§ 192, subd. (a)) and found true the allegation that Hinton personally used a handgun (§ 12022.5, subd. (a)(1)).
After Hinton waived a jury trial on his prior convictions, the court found true the allegations as to one prior conviction.
E. Motion for New Trial
Hinton filed a motion for a new trial on August 11, 2008. (See § 1181, subds. (4), (8).) As set forth at greater length post, the defense asserted two grounds. First, Hinton asserted prejudicial juror misconduct, based on declarations from jurors who claimed that another juror said Hinton could be retried and convicted of first degree murder if they were unable to reach a unanimous verdict on manslaughter. The juror purportedly made the statement after the jury had decided to acquit Hinton of murder and before the jury found him guilty of voluntary manslaughter. Second, the defense presented newly discovered evidence to the effect that a man had witnessed a woman, who might have been Harper, give his friend an envelope of money to kill someone named “Q” in November 2006. Additional evidence was admitted to the effect that the man’s friend said he attempted unsuccessfully to kill or harm “Q” in a chase and in Sacramento. The defense contended that, if the evidence were admitted at trial, a different result would be probable.
The trial court denied the motion.
F. Sentence
The court sentenced Hinton to an aggregate term of 38 years in state prison: 22 years for manslaughter (the 11-year upper term, doubled for the prior strike), plus consecutive terms of 10 years for the firearm enhancement (§ 12022.5, subd. (a)), five years for the prior serious felony conviction (§ 667, subd. (a)), and one year for the prior prison commitment (§ 667.5, subd. (b)).
This appeal followed.
II. DISCUSSION
Hinton contends the court erred in denying his motion for a new trial on the ground of juror misconduct and newly discovered evidence. We address each in turn.
A. Juror Misconduct
1. Background
In support of his new trial motion, the defense submitted declarations from jurors Tara Tomson and Marsha Upchurch, dated August 12, 2008. Both declared that the jury first agreed that Hinton was not guilty of first degree murder and second degree murder. The jury disagreed on the offense of manslaughter: at times, eight jurors believed he was guilty and four believed he was not; other times, nine believed he was guilty and three believed he was not. Both Tomson and Upchurch also declared: “While we were unable to reach a verdict on manslaughter, but after we had already found Mr. Hinton not guilty on first or second degree murder, one of the jurors cautioned us about becoming a hung jury. She said that Mr. Hinton could be retried on first degree murder, and even convicted of first degree murder, if we were not able to reach a unanimous verdict on manslaughter. . . . We later reached a unanimous verdict finding Mr. Hinton guilty of manslaughter.” (Italics added.) Tomson asserted that the juror who made the statement was “juror number 8, Susan Neander;” Upchurch averred that it was “juror number 4, Jackie.”[16]
The prosecutor opposed the motion, submitting declarations from jurors Susan Neander and Jacqueline Phillips. Both denied making the statement. Phillips said she heard no such statement, while Neander attributed a similar statement to Upchurch (who had attributed it to Phillips). Both Phillips and Neander said that Upchurch was the last juror to vote to convict on voluntary manslaughter.[17]
At the hearing on Hinton’s new trial motion, defense counsel represented that the defense had interviewed seven jurors, including Neander and Phillips, and all of them affirmed that the jury had signed verdicts of not guilty before a juror said that Hinton could be retried on murder if the jury could not come to a unanimous decision. The only dispute was who made the comment.
After hearing argument, the court denied the juror misconduct portion of Hinton’s motion. The court explained: “[Defense counsel] points out [that] at least one of the jurors introduced extraneous law, incorrect law into the jury deliberations. And I think the declarations that both counsel have submitted support that, but I think it’s important to note that none of the jurors who—or juror, singular, who gave that information never claimed any particular expertise in the law, as if, for instance, they were a lawyer or had a next-door neighbor who had a lawyer and discussed it with the lawyer and this lawyer tells me such and such. In other words, they didn’t have the cloak of believability of experience or expertise. . . . The Supreme Court stated . . . that the alleged statement was merely an opinion—this is in Riel [People v. Riel (2000) 22 Cal.4th 1153]—an estimation, a guess, a projection of what somebody might do in the future, referring to the judge, which is exactly what this case involves here, and found that mere expression of an opinion by one juror as to what may happen or what that person thinks will happen in the future is not even misconduct. . . . some of the cases I’ve read talk about how jurors are human beings, and oftentimes extraneous information gets in there, and they consider factors that they shouldn’t consider, but as [defense counsel] points out, sometimes that constitutes misconduct, it can be prejudicial and would support his position. I don’t find that in this case.”
2. Law
In relevant part, section 1181 provides: “When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases . . . [¶] 4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors.” A new trial must be ordered if the jury committed misconduct and there is a substantial likelihood that at least one juror was impermissibly influenced to the defendant’s detriment. (People v. Marshall (1990) 50 Cal.3d 907, 950, 951 (Marshall).)
As a threshold matter, Hinton contends that the declarations were admissible to establish juror misconduct because they pertained to “overt acts,” which included statements, conduct, conditions, or events “as are ‘open to sight, hearing, and the other senses and thus subject to corroboration.’ ” (People v. Perez (1992) 4 Cal.App.4th 893, 907; see In re Stankewitz (1985) 40 Cal.3d 391, 398 (Stankewitz) [the reasoning process of jurors is not implicated when “the very making of the statement . . . would itself constitute misconduct”].) Respondent does not dispute the admissibility of the declarations. We therefore turn to whether the declarations establish juror misconduct, and whether the alleged statement was prejudicial.
3. Juror Misconduct
Noting the trial court’s finding that “one of the jurors introduced extraneous law, incorrect law into the jury deliberations,” Hinton urges that the statement constituted juror misconduct. We disagree.[18]
a. Stankewitz
We begin with the case on which Hinton principally relies, Stankewitz, supra, 40 Cal.3d 391. There, a juror told the other jurors, during deliberations in the guilt phase of a capital case, that: he had been a police officer for over 20 years; he therefore knew the law; under the law, a robbery takes place as soon as a person forcibly takes personal property from another person, whether or not he intends to keep it; and as soon as the defendant took the wallets at gunpoint he committed robbery, whether or not he intended to keep them. (Id. at p. 396.) The court held that these statements constituted misconduct because (1) the juror “violated the court’s instructions and ‘consulted’ his own outside experience as a police officer on a question of law;” (2) “the legal advice he gave himself was totally wrong;” and (3) “[h]e did not keep his erroneous advice to himself; rather, vouching for its correctness on the strength of his long service as a police officer, he stated it again and again to his fellow jurors and thus committed overt misconduct.” (Id. at pp. 399-400, italics added, footnote omitted.)
The matter before us is distinguishable from Stankewitz. There, the key issue was whether a robbery took place, and the juror’s statement pertained to the substantive law that the jury would use in deciding whether the robbery occurred. (Stankewitz, supra, 40 Cal.3d at p. 395.) Here, by contrast, the key issue at the time of the juror’s comment was voluntary manslaughter, but the juror’s comment did not purport to state the substantive law of voluntary manslaughter.
The matter before us is distinguishable from Stankewitz in another respect. In Stankewitz, the juror was a police officer who “vouch[ed] for [his statement’s] correctness on the strength of his long service as a police officer” and he “stated it again and again to his fellow jurors.” (Stankewitz, supra, 40 Cal.3d at p. 400.) Here, by contrast, the juror who made the statement – whoever he or she was – did not vouch for its correctness, and there is no evidence that the statement was ever repeated.
b. Marshall
Hinton also relies on Marshall, supra, 50 Cal.3d 907. There, during deliberations in a capital trial’s penalty phase, a juror “ ‘informed the jury . . . [that he had a] background in law enforcement, and that the lack of evidence [of the defendant’s criminal history] did not mean the defendant has no criminal background, because juvenile records are automatically sealed at 18 years of age.’ ” (Id. at p. 947; ellipsis in original; words in second bracket added].) The juror’s statement constituted misconduct because it was “extraneous law, i.e., law not given to the jury in the instructions of the court” and it was erroneous, inasmuch as evidence of juvenile criminality is not barred from the penalty phase of a capital trial as a matter of law. (Id. at pp. 949-950.) The court explained: “[the juror’s] comment simply cannot be characterized as a general statement about the law that finds its source in everyday life and experience. [The juror] declared that it was the law that ‘juvenile records are automatically sealed at 18 years of age.’ And he vouched for his declaration on the strength of his ‘background in law enforcement.’” (Id. at p. 950, italics added.)
Like Stankewitz, Marshall is distinguishable from the instant case because, in those cases, the juror “vouched for his declaration on the strength of his ‘background in law enforcement.’” (Marshall, supra, 50 Cal.3d at p. 950.)
c. Riel
Closer to the matter at hand is People v. Riel (2000) 22 Cal.4th 1153 (Riel), on which the trial court relied. During deliberations in a penalty phase, a juror made a comment “ ‘to the effect that “If we give him the death penalty, the judge will just commute it to life in prison anyway.” ’ ” (Id. at p. 1218.) The jury thereafter returned a verdict of death. (Id. at p. 1172.) The defense brought a motion for a new trial, which the court denied. (Id. at pp. 1218-1219.)
On review, our Supreme Court found no abuse of discretion in the denial of a new trial motion based on the juror’s statement. The court explained: “A prediction that the court would commute a death verdict, if in fact made, was merely the kind of comment that is probably unavoidable when 12 persons of widely varied backgrounds, experiences, and life views join in the give-and-take of deliberations. Not all comments by all jurors at all times will be logical, or even rational, or, strictly speaking, correct. But such comments cannot impeach a unanimous verdict; a jury verdict is not so fragile. ‘The introduction of much of what might strictly be labeled “extraneous law” cannot be deemed misconduct. The jury system is an institution that is legally fundamental but also fundamentally human. Jurors bring to their deliberations knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience. That they do so is one of the strengths of the jury system. It is also one of its weaknesses: it has the potential to undermine determinations that should be made exclusively on the evidence introduced by the parties and the instructions given by the court. Such a weakness, however, must be tolerated. “[I]t is an impossible standard to require . . . [the jury] to be a laboratory, completely sterilized and freed from any external factors.” [Citation.] Moreover, under that “standard” few verdicts would be proof against challenge.’ [Citations.]” (Riel, supra, 22 Cal.4th at p. 1219, italics added.)
The Supreme Court in Riel continued: “Defendant argues that the juror who allegedly made the comment stated during jury selection that she had once worked as a nurse in county jail for two years. He asserts that ‘[n]o doubt that experience lent credibility to her statement with the jury,’ thus making this case similar to People v. Marshall, supra, 50 Cal.3d at page 950, where we found misconduct when a juror ‘vouched’ for a misstatement of law ‘on the strength of his “background in law enforcement.” ’ We disagree. No indication exists that the juror in this case did anything but express a personal opinion.” (Riel, supra, 22 Cal.4th at p. 1219.)
Stankewitz, Marshall, and Riel teach that a juror’s statement of law during deliberations, even if erroneous, does not necessarily constitute jury misconduct. Rather, an erroneous statement of law is misconduct when it is offered not merely as a personal reflection or opinion (as in Riel), but as an assurance based on claimed or implied expertise. (Marshall, supra, 50 Cal.3d at p. 950 [incorrect statement was misconduct where the juror “vouched for his declaration on the strength of his ‘background in law enforcement.’ ”]; Stankewitz, supra, 40 Cal.3d at p. 400 [incorrect statement was misconduct where the juror was a former police officer who claimed to know the law].) That did not occur here. The court did not err in denying Hinton a new trial on this ground.
4. Prejudice
Even if the juror’s statement did constitute juror misconduct, reversal would not be required because there was no substantial likelihood that at least one juror was impermissibly influenced.
Where juror misconduct is shown, prejudice is presumed and the defendant is entitled to a new trial unless the prosecution rebuts the presumption by proof that no prejudice resulted. (Stankewitz, supra, 40 Cal.3d at p. 402; People v. Pierce (1979) 24 Cal.3d 199, 207.)
Upon review, the question is whether the misconduct supports a finding of “a substantial likelihood that at least one juror was impermissibly influenced to the defendant’s detriment.” (Marshall, supra, 50 Cal.3d at p. 951; see People v. Leonard (2007) 40 Cal.4th 1370, 1425 [“a presumption of prejudice [arising from juror misconduct] ‘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’ ”].)
A “substantial likelihood of juror bias” exists where: (1) the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror;” or (2) “the nature of the misconduct and the surrounding circumstances” make it “substantially likely the juror was actually biased against the defendant.” (People v. Tafoya (2007) 42 Cal.4th 147, 192 (Tafoya).) “We assess prejudice by a review of the entire record.” (Ibid.)
Whether prejudice arose from juror misconduct is a mixed question of law and fact and therefore subject to independent review. (Leonard, supra, 40 Cal.4th at p. 1425; People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5.) “We accept the trial court’s factual findings and credibility determinations if supported by substantial evidence.” (Tafoya, supra, 42 Cal.4th at p. 192.)
There is no substantial likelihood that any juror was impermissibly influenced to Hinton’s detriment. The statement that Hinton could be retried or even convicted of murder is not the type of statement that is inherently and substantially likely to influence jurors to convict him of a crime they did not believe the prosecution proved. Nor do we find from the nature of the purported misconduct and the surrounding circumstances that it is substantially likely any juror was actually biased against the defendant.
As Hinton acknowledges, whether the juror’s statement was cloaked in an aura of authority or expertise may be considered in determining whether the presumption of prejudice has been rebutted. In the instant case, there is no evidence whatsoever that the statement was made with an express or implied claim of authority or expertise. The statement was a prediction of what could happen, not what would happen.
We also note that the juror’s statement was brief, uttered once, and did not result in discussion. (See People v. Avila (2009) 46 Cal.4th 680, 727 [“ ‘Transitory comments of wonderment and curiosity’ ” about a defendant’s failure to testify, although technically misconduct, “ ‘are normally innocuous, particularly when a comment stands alone without any further discussion.’ [Citation.]”].) Since one of the four declarants did not believe that the comment was even made, and the remaining three did not agree who made the statement, the statement appears to have been rather innocuous.
Lastly, the court instructed the jury not to rely on legal standards outside the court’s instructions, and to decide the case by applying the law as given in the court’s instructions to the facts as the jury finds them. (See CALCRIM Nos. 200, 201.) It is unlikely the jury disregarded this judicial directive in determining whether Hinton was guilty of voluntary manslaughter, in light of the nature of the comment and the circumstances in which it arose. (See Marshall, supra, 50 Cal.3d at p. 951 [no substantial likelihood that jury was influenced by juror’s impermissible statement about defendant’s possible criminal background, where trial court instructed that evidence of such background was absent and mitigation was therefore present as a matter of law].)
Hinton emphasizes the timing of the juror’s comment, observing that it was made when the jury was deliberating the lesser-included offense of voluntary manslaughter, and that after the statement the jury found Hinton guilty of the offense. Hinton argues: “The statement that appellant could be convicted of something even worse should the jury return with a hung verdict was aimed at those voting for complete acquittal. Those voting for acquittal were likely to be those who would most want to avoid exposing appellant to being convicted of an even greater crime (first degree murder).”
The record, however, does not bear out Hinton’s hypothesis. In the first place, the evidence shows that the juror’s statement arose in the context of whether the judge would release the jury or continue with deliberating; there is, therefore, no basis for inferring that it was expressed in a manner that would coerce jurors to convict Hinton of a crime they did not think he committed. Furthermore, the record does not show precisely when the statement was made: at times in the deliberations on the voluntary manslaughter charge the split was 8-4, 9-3, or 11-1 in favor of guilt, with the lone holdout being Upchurch – who may have been the one who made the comment. There is, therefore, no indication that the comment was made with the intent or effect of compelling jurors to reach a verdict they did not believe was supported by the facts and law. To the contrary, the jury’s ultimate verdict can be attributed entirely to the simple fact that they proceeded to deliberate on the evidence.
Indeed, the notion that any juror would declare Hinton guilty based on the juror’s statement seems unlikely. Any juror who, having just agreed with all 11 others that the evidence did not support first or even second degree murder, would not be so fearful of a retrial on those counts as to convict Hinton of a crime of which the juror thought he was legally innocent – especially here, where the juror’s isolated comment lacked any expression of authority or expertise.
In the final analysis, Hinton fails to establish that the trial court erred in denying the new trial motion on the ground of juror misconduc