P. v. Jesperson

Filed 9/12/07 P. v. Jesperson CA4/1

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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen, Judge. Reversed.

Thad Andrew Jesperson, a former second and third grade school teacher at Toler Elementary School (Toler) in San Diego, appeals his eight child molestation convictions, involving four victims, after three jury trials and a bifurcated court trial. At his first trial, the jury returned a verdict convicting Jesperson of a lewd and lascivious act upon a child under the age of 14 years (Pen. Code,^[1] 288, subd. (a); count 11, involving Emily A.) and found "that [Jesperson] did not commit an offense of [s]ection 288[, subdivision] (a) against more than one victim within the meaning of [s]ection 667.61[, subdivisions] (b)(c)(e)." The jury deadlocked on 12 counts alleging similar lewd and lascivious acts upon other young female students and each count's respective/attendant one strike law multiple victim allegation (counts 1 & 2 involved J.S.; counts 3, 4 & 5 involved Michelle A.; counts 6 & 7 involved K.H.; count 8 involved D.R.; counts 9 & 10 involved Renne B.^[2]; count 12 involved Aimee M.; and count 13 involved Teresa G.). The trial court declared a mistrial on these charges.

Before the second trial, the court denied Jesperson's motion for new trial and the People amended and renumbered the information to charge Jesperson with 11 counts of lewd and lascivious acts upon all of the originally named victims except for Emily and Teresa. The information also again alleged as to each count that Jesperson had committed the offense against more than one victim under the one strike law ( 667.61, subds. (b), (c), (e)). Upon retrial, the jury convicted Jesperson on count 1 as to J., acquitted him on four counts involving D., Renne and Aimee (counts 8, 9, 10 & 11), and found the one strike multiple victim allegation not true as to each of those counts. The second jury deadlocked as to counts 2, 3, 4, 5 and 7 involving J., Michelle and K., and the court declared a mistrial on those charges.

Pending sentencing and a possible third trial, the court granted Jesperson's motion for a new trial on the count 1 conviction involving J., based on juror misconduct during deliberations in the second trial. Before retrial, the People filed a second amended information charging Jesperson with seven counts of lewd and lascivious acts upon J. (counts 1 & 2), Michelle (counts 3, 4 & 5), and K. (counts 6 & 7), and again alleged as to each count that Jesperson had committed the offense against more than one victim under the one strike law ( 667.61, subds. (b), (c), (e)). Jesperson entered a double jeopardy plea, as well as not guilty pleas and denials, to all counts and allegations, and the court granted his motion to bifurcate for separate trial on the one strike allegations.

After the third trial, the jury convicted Jesperson of all seven counts as charged. The trial court subsequently found true the one strike multiple victim allegations and further found that Jesperson had not been "once in jeopardy" for those findings or their underlying convictions. After denying his new trial motion, the court sentenced Jesperson to prison for an indeterminate term of 15 years to life (seven concurrent indeterminate terms of 15 years to life for his convictions arising out of the third trial and a concurrent six-year midterm for the one conviction from the first trial).

On appeal, Jesperson contends that there was prejudicial juror misconduct at the first and third trials which denied him his constitutional right to a fair trial; that double jeopardy barred retrial at the third trial because the first two juries found he had not committed lewd and lascivious acts against multiple victims; that the trial court committed instructional error at the first and third trials which denied him due process and undermined the required jury determination of the intent element; and that the court also committed prejudicial evidentiary errors by admitting videotaped interviews of the four alleged victims into evidence at the third trial, by allowing those videotapes to go into the deliberation room, by excluding expert testimony regarding "suggestibility" at the third trial which was aggravated by prosecutorial misconduct during questioning, by permitting the introduction of voluminous hearsay evidence which repeated the accusations of the alleged victims, and by permitting the prosecution to use large diagrams of nude girls as exhibits at the third trial. Jesperson further claims that any failure of his defense counsel to object, inadequately object, or failure to make the appropriate objections to the introduction of any of the above evidence constituted ineffective assistance of counsel. Finally, Jesperson asserts the cumulative effect of all the errors denied him a fair trial and warrants reversal.

Based on the totality of the record, we vacate the conviction from the first trial for juror misconduct, vacate the convictions from the third trial for the cumulative prejudicial effect caused by juror misconduct and the ineffective assistance of counsel, and determine that double jeopardy principles barred retrial of the one strike allegation accompanying the count 1 conviction involving J. at the second trial. Accordingly, we reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Jesperson does not challenge the sufficiency of the evidence to support his various convictions which basically showed that between November 2002 and May 2003, reports surfaced that he had inappropriately touched at least four of his young female students at Toler in his second and third grade classrooms during the 2001-2002 and 2002-2003 school years. In January 2003, Jesperson was removed from the classrooms at Toler and San Diego Police Detective Kimberly Newbold was assigned to investigate the matter after one of the young girl's mother's (Michelle's) had called the police. Based on the responding officer's report, Newbold scheduled a forensic interview for Michelle at Chadwick's Children's Center (referred to as either Chadwick or Children's Hospital), which she then observed. After that interview, Newbold went to Toler where she talked with the principal and a counselor, and arranged to interview K., a friend of Michelle's, who, although she did not say she had been touched, gave Newbold J.'s name as a girl who had been touched by Jesperson.

Newbold went to Pacific Beach Elementary School (Pacific Beach) where J. was then a student and talked with her. Although J. denied Jesperson had touched her "in a way that made her uncomfortable," Newbold spoke with J.'s mother about the investigation, explaining why J. had been singled out to talk about her former teacher's conduct. After receiving information from J.'s father the next morning, and a voice mail from K.'s mother, Newbold separately recontacted K. and J., each of whom now said Jesperson had touched them. After interviewing K. at Toler, Newbold proceeded to interview all of the female students in Jesperson's 2001-2002 and 2002-2003 classes, including Emily, who made no disclosure at that time. Newbold subsequently arranged for both K. and J. to go to Chadwick for forensic interviews. Near the end of February 2003, Newbold, together with the prosecutor, conducted follow-up interviews with K. and Michelle at Toler, and J. at Pacific Beach. Newbold also interviewed numerous staff members at Toler, including the counselor, guidance aide, and principal.

On April 24, 2003, Jesperson was arrested. Afterwards, Newbold assisted the school principal in wording a letter to go out to the parents of students on how to approach their children and question them about the investigation regarding Jesperson.^[3] On May 1, 2003, Newbold was called back to Toler to interview Emily, who had recently told the school's counselor that Jesperson had touched her. Newbold then arranged for and viewed Emily's interview at Chadwick. After talking with Emily's mother, Newbold discovered that she had initially reported to a guidance aide at Toler in November 2002, that Emily had been touched on her leg by Jesperson. Nothing had come of that report because the guidance aide explained that Jesperson was just helping Emily tie her shoes.

Later in May 2003, Newbold seized Jesperson's school and home computers, disks and tapes, which were then checked for child pornography, but none was found. Another teacher, and friend of Jesperson's, had deleted Jesperson's personal files and emails from the school computer sometime in March 2003.

After a preliminary hearing in August 2003, Jesperson was charged with 13 counts of lewd acts with a child against eight different girls (Emily, J., K., Michelle, D., Aimee, Renne, and Teresa).

The First Trial

The first trial commenced in March 2004. In addition to presenting the above evidence about the reports of touching by Jesperson and the investigation by Newbold, each of the alleged child victims testified in the prosecution case.

Specifically, Emily testified that when she was in Jesperson's third grade math class at Toler, he touched her more than once while she was standing by him as he sat at the back table in the classroom checking her math assignments. The touching was over her underwear, but inside her pants in the back area on her "private parts," as well as on her back, her legs, and possibly her neck. Emily did not recall if Jesperson had touched her in the front area of her "private parts." Nor could she remember if it happened on the same or different days. Emily eventually stated she believed the touching occurred every day when Jesperson checked her math sheets. She first told Newbold that there had been no bad touching, but then learned from others that the touching was "bad." After her mother received a letter from Toler about the molestation allegations, Emily told her mother about the touching.

Emily's mother, who testified through a Spanish interpreter, stated that in November 2002, Emily told her that Jesperson would tell her she was very pretty in math class and then touch her legs and back. Emily also said that Jesperson would tickle her with his fingers on her back under her shirt and that he did that with "all of us." Emily's mother told Emily to tell Jesperson to stop that and also went to the school and told Mrs. Nellie Goodwin, a guidance aide who spoke Spanish, "what was going on." Goodwin told her she would take care of the matter. On May 6, 2003, Emily's mother received a call from the school about the touching and learned about "how he really touched her" after Emily's interview at Chadwick.

Emily's unredacted videotape of her interview at Chadwick was entered into evidence and played for the jury, as were the unredacted videotapes of the interviews of the other seven alleged victims. Several social workers who conducted the forensic interviewing of the alleged victims at Chadwick testified in general about the techniques used for such interviews and also about delayed reporting.

Also in the prosecution case, various relatives of the other alleged victims testified as well as the San Diego police officer who took Michelle's mother's initial report of molest, Toler's principal, its counselor, the guidance aid and other teachers. San Diego Unified School District counselor Heather Medlock testified that when she went around to all the classrooms to do a presentation about "good touch/bad touch" for the children in September 2002, Jesperson told her she need not give the presentation to his students because he had "already done the presentation for them." Special Education Assistant Connie Murphy, who worked in Jesperson's classroom one-on-one with a male student during the 2002-2003 school year, testified that when approached by Goodwin about a reported touching in November 2002, she told Goodwin that Jesperson had only touched Emily on the leg while teaching her how to tie her shoes. Goodwin told Murphy not to mention their conversation to anyone. Murphy never saw Jesperson touch any student in an inappropriate manner.

Jesperson did not testify in his defense at the first trial. He called numerous witnesses, including family members and friends, who testified as to his good character and the fact each had never seen him act inappropriately around children. A number of teachers and other school personnel testified that Jesperson was a good teacher who cared for his students.

The teacher who replaced Jesperson in his classroom, Jane Badger, testified that in April 2003, Aimee, one of the alleged victims, told her that Emily "was telling everyone that [Jesperson] had touched her on the leg." Badger talked with Emily's other third grade teacher and also went to the principal, leaving the principal a message that Emily had been talking to other children on the playground about being touched on the leg by Jesperson. Another day, Aimee approached Badger to tell her that her mother had been crying the day before with Emily's mother about Emily being touched. Several days later, Aimee reported that she had been touched on her shoulder and hip by Jesperson. Badger also testified that K. came in her classroom one day to help with a project after regular hours, and after about 15 minutes asked Badger if she knew why she was there at Toler. A few minutes later, K. said, "Well, he is never coming back and I get to go to Children's Hospital tomorrow and miss school . . . ."

The defense also presented testimony from several experts. A psychologist testified about the variables that can affect a young child's report of sexual abuse, including being interviewed and questioned numerous times as well as talking with friends, and opined there was a need for corroboration for such reports. A forensic psychologist, Dr. Clark Richard Clipson, testified he had evaluated Jesperson by giving him the Minnesota Multiphasic Personality Inventory (MMPI), a general test of personality functioning, and administering a test called the Hare Pyschopathy Checklist (Hare), scoring it based on a review of the available records and an interview with Jesperson, to determine whether he was a psychopath or not. Based solely on the checklist after his examination of Jesperson, Clipson opined Jesperson did not have "a diagnosis of pedophilia or a specific predisposition to molesting young children." In other words, Clipson did not believe Jesperson was a pedophile or that he displayed any signs of sexual deviance or abnormality. Clipson did not use the results of the MMPI in his evaluation, because he considered the results invalid as Jesperson had responded to the test in a defensive manner, which is not uncommon for someone accused of a crime.

On cross-examination, Clipson conceded that the raw data of Jesperson's MMPI had been sent to an institute in Los Angeles for computer scoring and an independent assessment. That assessment found Jesperson "extremely guarded and self-favorable in his approach [to the test, and] that in some cases such extreme guardedness has covered over psychotic disorders that were not previously fully reflected in their profiles." Clipson did not believe that the MMPI results had any bearing on whether Jesperson has a disposition to commit sexual offenses against children.

In closing, defense counsel essentially argued that any touching of the alleged victims, which was not corroborated, had been innocent, without any sexual intent, and that the delayed reporting was a product of suggestions from other classmates, parents, interviewers, school letters, and Newbold who reinforced any suggestion the alleged touching was "bad." As noted earlier, the jury only returned a guilty verdict on count 11 involving Emily, and did not find the multiple victim allegation to that count true.

The Second Trial

After denying Jesperson's new trial motion and ruling on in limine motions, the second trial commenced in May 2004 on charges Jesperson had molested six of his young students (Michelle, D., K., Renne, Aimee and J.). The prosecution case was much the same as at the first trial, with each of the alleged minor victims testifying and their respective interview videotapes being played for the jury. This time Emily testified and her videotape was shown to the jury as propensity evidence of other acts of molest pursuant to Evidence Code section 1108. The prosecution also read excerpts of Michelle's earlier testimony at the preliminary hearing and first trial to the jury.

Jesperson testified in his own defense at the second trial, presented an expert on "suggestibility," and again called numerous witnesses about his good character as a person and teacher. Clipson did not testify at the second trial. After defense counsel read into the record portions of Renne's, K.'s and J.'s earlier preliminary hearing and trial testimony, the prosecution read additional parts of those girl's testimony into the record in rebuttal. During closing argument, defense counsel played portions of Detective Newbold's interview with Emily and J., telling the jurors, "You can watch the videos for yourself," and decide if "Detective Newbold had some influence over these kids."

As noted above, the jury eventually returned a guilty verdict on count 1 involving J., not guilty verdicts on counts involving D., Renne and Aimee, and found the attendant multiple victim enhancement allegation to each count untrue. The court declared a mistrial on the remaining counts involving J., Michelle and K., and subsequently overturned the count 1 conviction when it granted Jesperson's motion for a new trial.

The Third Trial

After Jesperson entered a double jeopardy plea to the seven counts and attendant enhancements in the second amended information charging him with lewd acts against Michelle, J. and K., and the court ruled on in limine motions, testimony began December 7, 2004, in the third trial.

A. Prosecution Case

As in the first and second trials, the prosecution presented the above mentioned evidence concerning the reporting of abuse and the subsequent investigation. In addition to the testimony of Newbold, Toler's principal, several teachers, a computer expert, and the guidance aide Goodwin, the following evidence was presented regarding the three alleged victims.

1. Michelle

Michelle, who was 10 1/2 years old at the time of the third trial, testified that when Jesperson was her second grade teacher he touched her "front private part," moving his hand in a circular motion over her clothing on more than one occasion as she sat at a reading table in class. Using a doll, Michelle pointed between its legs in the vaginal area to show where she had been touched and stated the touching felt "bad." Michelle believed the touching started before Halloween, and although she did not like Jesperson after that, she wrote him a Christmas card that year and signed it "Love," from her and her family. Michelle did not tell her parents during that time because, "I think I was embarrassed."

Michelle believed she was in the third grade when she first told her friend K. about the touching as they sat in the school cafeteria and Jesperson walked by them. Michelle still did not tell her mother about the touching at that time, but did so only after she told another friend Vanessa about the touching, and Vanessa said she should tell her parents.

According to Michelle's mother and father, who each testified, in January 2003, when Michelle was reading something to her mother, she stopped and told them that Jesperson used to touch her "front [private] part" and moved his hand up and down when she was reading to him. Michelle indicated she did not say anything sooner because she liked Jesperson's class and did not want to be moved. When Michelle's father asked her if she were telling the truth, she replied, "That's why I didn't tell you because I didn't think you would believe me." Michelle's mother then reported the touching to Goodwin at Toler, who told her that, "This is not the first time we have had a report about this teacher." When Michelle's mother did not hear back from the school that day, she called the police.

At trial, Michelle's mother further testified she had observed unusual behavior in Michelle in the middle of second grade. She explained that Michelle did not like to read as much as before; she did not want to go to school some days, saying her head or stomach hurt; and she stopped wanting to stay late for after school programs. Michelle's father also noticed Michelle acting differently during second grade, saying at that time she did not want to go to the bathroom unless the door was open and he or his wife was standing outside within hearing distance; she wanted to sleep between them in their bed; and she did not want to go outside by herself. This behavior went away by the end of that school year.

When a police officer spoke with Michelle after receiving her mother's call, Michelle indicated that Jesperson had touched her about "five times" when she was in his second grade class. She explained that the touching occurred when Jesperson would have her come up and sit in a chair next to his desk to read a book for him. While she was reading, he would reach over, rub her in her vaginal area over her clothes, and say she was doing a good job. Michelle did not use the word "vagina," but rather pointed to that area when asked where she was touched. Michelle told the officer she did not tell anyone at the time because she was afraid.

In response to defense counsel's questioning, Michelle's mother on cross-examination explained that after the police officer had talked with Michelle about the allegations of touching, Michelle scribbled out Jesperson's photo on a class picture, saying "if it wasn't for him, I wouldn't have to go to the Children's Hospital for this interview." Also after the allegations surfaced, Michelle's mother had found a knife under Michelle's pillow on several occasions and said that Michelle had come into the living room one time holding the knife and threatening to kill herself. Michelle had also thrown up and had tried to jump out of the car when the family had come to court one time. Michelle's parents sought counseling for Michelle in April 2004 and have also filed a civil lawsuit.

2. J.

J., who attended a different school in the third grade, testified at the third trial that on more than one occasion when she was in second grade at Toler, Jesperson "touched [her] in the wrong places and [it] felt uncomfortable." She explained that during class, while she was standing next to his desk or a reading table at the back of the room, Jesperson, who would be sitting and still teaching class, would pull her underwear down with one hand and touch and rub her skin between her legs in the area where she goes "pee." She thought the touching felt like being brushed with a "feather," and did not know whether it was "good or bad" touching at that time. When the touching was happening, the other children would usually be at their desks. She told Jesperson to stop once, and he did, but it started again. She did not tell an adult about the touching because she did not want to get Jesperson in trouble. When Newbold first talked with J. at her new school, J. told her no bad touching had happened.

J. could not remember when she first told her friend K. about the "bad" touching, but she believed it was when K. was at her house for a sleepover. K. then told J.'s parents because J. was afraid to do so. When her parents first asked her what had happened, J. denied anything happened because she was afraid it was her fault and that she would get in trouble. She eventually told her parents the next day about the touching after her mother kept reassuring her that it would not be her fault if something had happened. When J. was reinterviewed by Newbold, she told her Jesperson had pulled down her "nylons" and had touched her legs. J. used the word "nylons" to mean underwear.

On cross-examination, defense counsel read into the record parts of J.'s preliminary hearing testimony and segments from both the first and second trials regarding her statements that any touching was on her legs and that she never used the word "nylons" to describe her underwear. Counsel also read statements from J.'s second trial testimony into the record where J. stated she sometimes had difficulty telling the difference between dreams and real life. J. conceded that when she went back to Toler for a Halloween carnival in the Fall of 2003, she ran up to Jesperson to greet him.

3. K.

K., who attended school in Temecula at the time of the third trial, testified that when she was in second grade at Toler, Jesperson touched her with his hand "on my leg from my knee up" on more than one occasion. She explained that the touching would happen in the classroom while she was sitting down reading a book next to Jesperson who was sitting at his desk. The touching, with his hand moving up and down, would sometimes be over her clothing, when she was wearing pants, and sometimes on the skin of her thigh, when she was wearing a dress. K. did not tell anyone at first "because [she] didn't really know if it happened to anyone else." At some point in third grade, K. talked to her friend Michelle about the touching. K. could not remember the exact sequence of her reporting, but remembered she told her mother about the touching after talking with Michelle about it, and that she talked about the touching with Goodwin at Toler "along with the other girls," as well as with Newbold and the social worker at Children's Hospital.

On cross-examination, K. conceded she had told the social worker that nothing really happened to her, but "it happened to my friends." K. also remembered talking on the playground and the steps outside the classroom with Michelle and other girls named Vanessa and Renne about the touching. Defense counsel read into the record statements from K.'s preliminary hearing that the touching was only "over" her clothes and on the "front of the calf area and above the knee halfway between the knee and the thigh."

K.'s mother testified that when she picked up K. from school in late January 2003, K. told her about Jesperson touching her on her leg up and down near her crotch area and that she and some others had reported the touching to Goodwin. K.'s mother told her she needed to make sure she and her friends were telling the truth because it could hurt Jesperson and his family and career. When Newbold later talked with K.'s mother, K.'s mother told her she was not sure how serious K.'s statements were because K. had also told her she thought Jesperson was just comforting her when he touched her. K.'s mother acknowledged that K. and J. were best friends who talked on the phone regularly and often had sleepovers.

Additional Evidence

As in the second trial, the prosecution presented Emily's and her mother's testimony in the third trial as evidence of other acts of molestation under Evidence Code section 1108. Their testimony was essentially the same as it had been at the first trial. In addition to Emily testifying about Jesperson having touched her on her private parts when he corrected her math papers, she also remembered he had helped her tie her shoe once and that the special education assistant for a boy in that class also had helped her tie her shoes. Emily's mother additionally testified that one day when she was tickling Emily's leg, Emily told her that was what her math teacher does to her. Emily also told her mother that Jesperson put his hand underneath her shirt and rubbed her, a type of playing that he did with everyone.

On cross-examination, Emily remembered that some letters came to her home from the school saying something about Jesperson being arrested for "violating a girl." After receiving the letters, Emily's mother asked her numerous questions about Jesperson and touching, and Emily also talked to friends at school about the letters.

Catherine McClennan, a forensic interviewer with the Palomar Pomerado Health Systems child abuse evaluation program, testified that abused children often delay reporting abuse because they are afraid of getting themselves or others in trouble. McClennan believed that the cognitive or developmental abilities of children aged 7-10 years old make it difficult for them to identify or estimate details of an event such as time, date, the number of occasions it happened, and how long it lasted.

As she did at the earlier trials, Toler's school counselor Medlock testified about Jesperson telling her she need not do a "good touch/bad touch" presentation for his class in September 2002 because he had already covered that topic with his students. On cross-examination, Medlock said that when she interviewed Emily on May 1, 2003, about some rumors at Toler, Emily told her that she had been touched "[f]rom her back down to her bottom." Medlock had walked to Emily's classroom to get her for the interview as Emily was upset because "[s]he felt like she was the reason why Mr. Jesperson went to jail." The written report generated from that interview stated that Emily said Jesperson touched her on the back "in a way that made her feel uncomfortable. . . ." When Medlock questioned her further, Emily said she "felt she was the only one that [Jesperson] was touching, and that she was afraid to turn in her math homework because when she went up to the table, . . . that's when the touching occurred."

A social worker from Chadwick then testified about the videotaping of forensic interviews of possible child abuse victims and in general about the proper techniques used for such interviews. On cross-examination the social worker explained how the interviews and other questioning by parents, teachers, and police could affect a child's memory. As in the previous trials, the videotaped interviews of Michelle, K., J. and Emily were then played for the jury.^[4]

At the close of the case-in-chief, the prosecutor had read into the record some prior consistent statements and other portions of transcripts from J.'s and Michelle's earlier court testimony at the preliminary hearing and second trial.

Defense Case

As he did at the second trial, Jesperson testified in his own defense at the third trial. Jesperson had been at Toler since 1998, working first in the library and then teaching second grade starting the next school year. He began teaching third grade in the 2002-2003 school year. Since 1999, Jesperson had also worked with the "6 to 6" program at Toler, a program designed to help students with homework and academics before and/or after normal school hours. The program required the use of a computer in his classroom, and staff would often enter the classroom unannounced to use it while he was teaching. Additionally, other individuals, such as the principal, other teachers, students' parents, the janitor, and other staff members, had an "open invitation" to enter Jesperson's classroom unannounced. When he taught third grade, special education assistant Murphy was also assigned to his classroom, including during math class, to aid an autistic boy student.

Jesperson said he always kept the door and windows to his classroom open. A large kidney-shaped table used for guided reading was located near the classroom door in the back where two to six students would sit to read together and he would sometimes sit next to them to help them read. Usually the student would sit on his right side when he was helping with reading, as he cannot hear out of his left ear.

Jesperson testified he was very affectionate with his students, often patting them on the back or leg to say "excellent job" when they sought his attention. If he needed a student to stop reading, Jesperson would pat them on the leg or back and tell the student to "hold on." He would often hold their hands when he walked the young students to the school cafeteria or outside for recess. Other times, his students would run up to him, grab his hands and give him a hug. Because he had large hands and the small size of the children, Jesperson conceded that patting them on their knees might mean his hand was also patting them on their thighs. Jesperson denied ever touching a student inappropriately.

With regard to the specific alleged victims in this case, Jesperson testified that Michelle and K., who were students in his second grade class in the 2001-2002 school year, daily sought his attention, even when they were no longer in his class, and even after the alleged touching. Both girls had begged to be in his third grade class for the 2002-2003 school year. Michelle had even given him a Christmas card during the 2001 holiday season and a gift bag after the 2001-2002 school year. Jesperson denied he had ever touched Michelle in the genital area. Nor had he ever pulled down J.'s "nylons" or underwear and touched her in the genital area. Although he had touched Emily's leg when he helped her tie her shoe one day, Jesperson denied he had ever put his hand down the back of her pants.

Other Defense Evidence

A number of witnesses testified in the defense case that Jesperson's classroom door, windows and blinds were always open, and that when they frequently entered his classroom unannounced they never saw Jesperson inappropriately touching any of the children. None of the other teachers or school staff at Toler noticed any change in Michelle's or K.'s behavior toward Jesperson between second and third grade.

Several experts also testified in Jesperson's defense. Dr. Clipson, who had testified in the first trial, testified he had evaluated Jesperson using several tests to determine if he had a mental disorder that predisposes him to commit a sexual offense. After administering the tests, Clipson determined there was "no evidence of any kind of psychopathology," of a personality disorder, or of any kind of sexual deviance. Although Jesperson had appeared very defensive and guarded on a first MMPI test, which is common for someone who has never been accused of a crime, he came out "less guarded" on a second MMPI test, which indicated "an absence of psychopathy." Clipson conceded on cross-examination that if all the alleged facts in this case were true, then Jesperson would qualify under the psychological definition of a pedophile.

Dr. Calvin Colarusso, a psychiatrist, testified he had evaluated Jesperson and found no evidence of psychopathology, psychiatric disease, or anything abnormal. Colarusso opined that Jesperson was not a pedophile.

Dr. Alison Clarke-Stewart, who had also testified at the second trial and was a psychology professor who focused on the study of child development, memory, and suggestibility, found that memories can be falsely influenced by the suggestion of others and that children are more prone to suggestibility than adults. Although not permitted to give her opinion as to whether the alleged victims' claims of touching in this case were a product of suggestions, Clarke-Stewart explained that if children are led to believe someone is a bad person, they will reinterpret actions that were innocuous as inappropriate.

Vanessa, a young student at Toler during the time of the alleged inappropriate touchings, testified in the defense case that one day on the playground at school when Michelle said Jesperson had touched her right thigh and back and K. said he had touched her on the shoulder that she told them "that's child molesting" and they should tell their mothers. Vanessa said she had learned about child molesting from a television program.

The defense also called numerous witnesses, including family members and friends, who testified as to Jesperson's good character and the fact that each had never seen him act inappropriately around children. Five children, who were either family members of Jesperson or friends of Jesperson's, testified that Jesperson never touched them inappropriately.

A number of school personnel and parents additionally testified that Jesperson was a good teacher who cared for his students. Specifically, Badger, the teacher who replaced Jesperson in his classroom after his removal, testified as she did at the first trial. She stated that in April 2003, children in her class were talking about Jesperson's arrest and the fact that Emily was telling others Jesperson had touched her. Badger also testified that before K. was to have her social worker interview, she bragged that Jesperson was "never going to get out [and that she was getting ] to go to the hospital tomorrow."

In closing, defense counsel argued that all the jurors had heard was "inconsistent, incredible, unbelievable [uncorroborated] statements" of seven and eight-year-old children "about the most unlikely person to have committed these crimes." Counsel asserted that the talking among the girls about the touching and their repeated questioning by parents, friends, school staff, social workers, and police influenced their perceptions of any touching and reports of molestation. Counsel claimed that the children were "getting trapped in a story [that] they start[ed] to believe." Counsel asked the jury to view Michelle's and Emily's videotapes for examples of such suggestions, and played a part of Emily's tape during argument. Counsel stressed that the expert testimony and unimpeached character evidence presented "more than proof beyond a reasonable doubt that this man is innocent." The jury determined otherwise.

DISCUSSION

I

JUROR MISCONDUCT

Jesperson contends that prejudicial juror misconduct deprived him of his constitutional right to a fair trial at both the first and third trials. Specifically, he claims three jurors committed prejudicial misconduct during deliberations at the first trial and that one juror committed prejudicial misconduct during deliberations at the third trial. In the alternative, Jesperson asserts the trial court abused its discretion in refusing to conduct an evidentiary hearing on the claims of jury misconduct in the first trial before it erroneously denied his new trial motion on such ground. We separately address his contentions after setting forth the basic relevant law.

A. The Law

Because a criminal defendant has a constitutional right to have the charges against him determined by a fair and unbiased, impartial jury (U.S. Const., 6th & 14 Amends.; Cal. Const., art. I,  16; In re Hitchings (1993) 6 Cal.4th 97, 110 (Hitchings)), he or she may be entitled to a new trial "[w]hen the jury has . . . been guilty of any misconduct by which a fair and due consideration of the case has been prevented." ( 1181, subd. 3.) "An impartial jury is one in which no member has been improperly influenced [citations] and every member is ' "capable and willing to decide the case solely on the evidence before it" ' [citations]." (In re Hamilton (1999) 20 Cal.4th 273, 294 (Hamilton).)

Where the defendant seeks a new trial based on jury misconduct, the trial court must undertake a three-step inquiry. (People v. Duran (1996) 50 Cal.App.4th 103, 112 (Duran).) First, the court must determine whether the proffered evidence of jury misconduct is admissible under Evidence Code section 1150, subdivision (a).^[5] (Duran, supra, at pp. 112-113.) With certain narrow exceptions, "evidence that the internal thought processes of one or more jurors were biased is not admissible to impeach a verdict." (Hamilton, supra, 20 Cal.4th at p. 294.)

Secondly, if the court finds that some or all of the evidence is admissible, "it must then consider whether the [admissible] facts establish misconduct." (Duran, supra, 50 Cal. App.4th at p. 113.) In other words, the court focuses on whether the admissible evidence in the supporting declarations shows "any overt event or circumstance, 'open to [corroboration by] sight, hearing, and the other senses' [citation], which suggests a likelihood that one or more members of the jury were influenced by improper bias." (Hamilton, supra, 20 Cal.4th at p. 294; fn. omitted; original italics.) Juror declarations that show by admissible evidence "a direct violation of the oaths, duties, and admonitions imposed on . . . jurors, such as when a juror conceals bias on voir dire, consciously receives outside information, . . . or shares improper information with other jurors" (Hamilton, supra, 20 Cal.4th at p. 294) generally establish juror misconduct. (See also People v. Nesler (1997) 16 Cal.4th 561, 578 (Nesler); Duran, supra, 50 Cal.App.4th at p. 112.) For example, declarations giving evidence that one or more jurors disregarded admonishments or instructions of the court by discussing an improper topic generally show overt acts of misconduct going beyond the juror's mental state and the question becomes whether there was any prejudice caused by such misconduct. (See People v. Hord (1993) 15 Cal.App.4th 711, 721-729 (Hord); People v. Perez (1992) 4 Cal.App.4th 893, 907-908.)

In determining whether the admissible evidence shows juror misconduct, the court in its discretion may conduct an evidentiary hearing to resolve material conflicts in the facts showing a strong possibility of prejudicial misconduct. (Duran, supra, 50 Cal.App.4th at p. 113.) In this second step, the admissible evidence must show serious misconduct of a nature likely to have affected the verdict. (People v. Hill (1992) 3 Cal.App.4th 16, 35, disapproved on another point in Nesler, supra, 16 Cal.4th at p. 582, fn. 5.)

Finally, if the court finds that misconduct has occurred, it "must determine whether the misconduct was prejudicial." (Duran, supra, 50 Cal.App.4th at p. 113.) In this regard, once misconduct has been shown, prejudice is presumed and reversal is required "unless the reviewing court finds, upon examination of the entire record, there is no substantial likelihood that any juror was improperly influenced to the defendant's detriment. [Citations.]" (Ibid.)

Moreover, specifically regarding claims a juror has brought to deliberations extraneous information derived from their personal knowledge and experience rather than from the trial evidence in violation of well established law that "[j]urors are not allowed to obtain information from outside sources either as to factual matters or for guidance on the law" (People v. Karis (1988) 46 Cal.3d 612, 642; see also People v. Barton (1995) 37 Cal.App.4th 709, 715), we apply the standards set out in In re Carpenter (1995) 9 Cal.4th 634, 653 (Carpenter).

"To summarize, when conduct involves the receipt of information from extraneous sources, the effect of such receipt is judged by a review of the entire record, and may be found to be nonprejudicial. The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. [Citation.] The judgment must be set aside if the court finds prejudice under either test." (Ibid.)

In reviewing the denial of a new trial motion based on alleged juror misconduct, we accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence, but independently review the trial court's determination of whether the juror misconduct resulted in prejudice. (Nesler, supra, 16 Cal.4th 561, 582; see also People v. Ault (2004) 33 Cal.4th 1250, 1261-1262 (Ault).)

With these general rules in mind, we address Jesperson's assertions of juror misconduct in turn.

B. Alleged Juror Misconduct at the First Trial

Background

In his motion for new trial filed after the first trial, Jesperson claimed, among other things, that he "could not receive a fair trial because two of the jurors held undisclosed biases and two jurors injected their specialized knowledge of teacher training and psychological [MMPI] testing into deliberations, improperly influencing fellow jurors." In support of the motion, he submitted declarations from Juror Nos. 9 and 10, as well as from his counsel's law partner and private investigator. Based on the declarations, Jesperson specifically claimed that Juror No. 7 failed to disclose a hidden bias against his trial counsel Robert Boyce, improperly accused Juror No. 10 "of being a racist to persuade the juror to change his vote," and disregarded the court's instructions not to discuss and consider his failure to testify. Jesperson further asserted that Jurors Nos. 1 and 12 were both actually biased and that each improperly discussed their respective specialized knowledge during deliberations. He additionally asserted that Juror No. 12's bias was shown by the fact he discussed during deliberations a matter the court had admonished him and other jurors not to consider regarding a perceived unfairness to Emily's mother during closing arguments.

The People opposed the motion, including making evidentiary objections under Evidence Code section 1150, and submitted purported declarations from Juror Nos. 1, 4, 6, 7 and 12, as well as a copy of Dr. Clipson's testimony concerning the MMPI test and results.

At the hearing on the new trial motion, the court ruled on the admissible parts of each declaration and offers of proof^[6]and heard argument, in which defense counsel alternatively requested an evidentiary hearing to resolve the conflicts between the declarations and offers of proof. The court then ruled it did "not believe that the level of prejudicial misconduct is established, and the request for a new trial [on that ground] is denied." The trial judge then explained:

"Specifically, the Court finds that the juror discussions or remarks about the denial of seating does not rise to the level of misconduct. The Court adequately instructed them in a timely fashion that the jurors should not allow any of their observations to figure into their deliberations. And I do not believe that there is prejudice to the defendant as a result of any comment or observation made. [] As to the teacher and training proposed testimony, that does not rise to the level of misconduct. [] Similarly, with respect to the comments on the M.M.P.I. training and experience, I do not believe that that rises to the level of misconduct, either. [] The failure to testify was a comment in passing and did not enter into the deliberations. [] As far as Juror Number Seven's alleged comment regarding Mr. Boyce's past representation, I do not believe that the comments rise to the level of expressing a bias against the defendant, or for that matter against Mr. Boyce because of that representation. Based upon the allegations that are made, I don't see that there has been a connection between the Westerfield representation and the alleged negative comments, so I don't see that there has been misconduct established."

On appeal, Jesperson challenges the court's ruling on grounds it improperly determined the credibility of the submitted declarations and offers of proof, failed to conduct an evidentiary hearing to resolve the conflicts in the admissible portions of the declarations, and erroneously concluded there was no prejudicial misconduct. As we explain, we agree the trial court abused its discretion in finding no prejudicial juror misconduct at the first trial.

Analysis

Here, the court found admissible certain statements in the supporting declarations and offers of proof showing that during deliberations Juror No. 12 discussed his teacher training regarding the touching of young children and the denial of courtroom seating for Emily's mother, Juror No. 1 discussed his specialized MMPI training and experience, and Juror No.7 mentioned Jesperson's failure to testify and made negative comments about Jesperson's attorney. Such statements described overt acts admissible under Evidence Code section 1150. Based on such evidence, however, the court found no misconduct and that there was no showing of prejudice to Jesperson as a result of any comment or observation made. The questions before us are whether the court's findings regarding no misconduct in the first instance was supported by substantial evidence, and, if not, whether the misconduct was prejudicial.

1. Claimed Misconduct by Juror No. 1

During voir dire, Juror No. 1, who was vice president of operations for the San Diego Trolley and had served as the company's expert witness in litigation, told the court that he had no training in psychology. Later during trial, Dr. Clipson testified about the limitations of the MMPI test to determine whether a person was a child molester and also talked about malingering, which means that someone may be faking answers to questions asked, when discussing the results that showed Jesperson had appeared guarded and evasive in his answers to the MMPI.

Subsequently, as mentioned above, the declarations and offers of proof revealed that Juror No. 1 discussed his training and experience with MMPI testing during deliberations. The supporting declarations of Juror Nos. 9 and 10, stated Juror No. 1 informed the other jurors that he had knowledge about how the MMPI works because all job applicants with the San Diego Trolley system had to take the test. Juror No. 1 explained what the MMPI was supposed to test and informed the jurors "that if a job applicant does not perform favorably on the MMPI, then he would not hire the applicant, because they might be hiding something. [He] further said Mr. Jesperson's MMPI test results meant he was hiding something related to the charges."

In his own opposing offer of proof, Juror No. 1, who was the foreman for the first trial, conceded that "[d]uring the discussion of the MMPI[,] I explained in layperson's terms, what I believed Dr. Clipson's testimony to be. I stated that the test was a general personality test, that . . . if the computer invalidates someone's MMPI, that would mean that the person's answers may not be consistent with how the person really thinks." Juror No. 1 denied suggesting any evidence outside of what was heard in court about the MMPI and denied he had stated it meant "that Jesperson was hiding the truth about molesting the girls," reiterating that "based on Clipson's testimony, that the MMPI is not even designed to determine whether someone molested a child." Offers of proof by Jurors Nos. 4, 6, 7 and 12 agreed Juror No. 1 talked about the MMPI testing, but remembered he only stated he used the test to screen applicants for his work, repeated that the test could not tell whether someone is a child molester as testified to by Clipson, and did not tell them the MMPI results meant Jesperson was hiding the fact that he molested the girls.

The court found the comments on the MMPI by Juror No. 1 did not rise to the level of misconduct. Relying on In re Malone (1996) 12 Cal.4th 935 (Malone), Jesperson argues this finding is not supported by the evidence and law because the improper injection of extrajudicial expertise or specialized information into the deliberations on a matter at issue is misconduct. (Id. at pp. 947-948, 963.) However, even assuming the court's finding of no misconduct was unsupported because Juror No. 1 couched his offer of proof in terms of giving explanations about the MMPI to lay jurors thereby assuming an expert tone or role going beyond just giving an opinion on a technical subject within a person's education and background (see People v. Steele (2002) 27 Cal.4th 1230, 1266), the admissible parts of the evidence presented do not show that Juror No. 1 offered the other jurors some basis for deciding the case against Jesperson other than on the trial evidence and testimony. (See People v. Yeoman (2003) 31 Cal.4th 93, 161 (Yeoman).) Although Juror No. 1's remarks were thus arguably improper, after reviewing the entire record, including Clipson's cross-examination testimony in which he discussed the possibility the result of guardedness in some cases could cover up disorders and other matters not disclosed, we find no substantial likelihood that Juror No. 1's remarks indicated bias on his own part or were likely to have influenced any juror. (Carpenter, supra, 9 Cal.4th at p. 653.) Moreover, as in Malone, "[t]he People have successfully rebutted the presumption of prejudice [on this point] by showing the externally derived information was substantially the same as evidence . . . presented to the jury in court." (Malone, supra, 12 Cal.4th at p. 964.) No prejudicial misconduct is shown on this point.

2. Claimed Misconduct by Juror No. 7

During jury selection, Juror No. 7 remained silent when defense counsel Boyce and the court inquired of the prospective jurors if any of them had a similar bias as the prospective juror who had just been removed for cause after voicing hostility against Boyce because of his involvement in the David Westerfield case, a widely publicized capital case involving the molestation and murder of a seven-year-old girl in San Diego County. The court admonished the entire jury panel about defense attorneys representing many different clients and told them that if anyone were holding that fact against Boyce, he or she needed to bring it to the court's attention. Later, when another prospective juror from a different panel commented on Boyce's representation of Westerfield, the court reiterated its earlier advisements about revealing any bias against the attorneys, explaining that it "really need[ed] to know if anybody is secretly feeling [the] way [the removed juror felt about Boyce]." Juror No. 7 did not respond and said there was no reason she would not be fair and impartial.

Before deliberations, the court instructed the jurors that they were not to "draw any inference from the fact that a defendant does not testify. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way." (CALJIC No. 2.60.)

Supporting declarations from Juror Nos. 9 and 10 alleged that during deliberations Juror No. 7 mentioned or discussed Jesperson's failure to testify and made comments critical of Boyce, mentioning that he had poorly represented Westerfield who had gone to prison and that "this is the kind of clients that Mr. Boyce likes to represent." Juror No. 10 also declared that Juror No. 7 had "accused [him] of being a racist, stating 'Maybe you don't like Mexicans.' "

Juror No. 7 submitted an offer of proof, denying that she or any other juror had accused Juror No. 10 of being a racist during deliberations. Juror No. 7 conceded, however, that she had asked Juror No. 10 "something to the effect of, 'do you have a feeling that you distrust Spanish speaking girls?' "

Juror No. 7 also admitted that "[b]efore any balloting, and before any discussions about the facts, I stated, 'I wonder why [Jesperson] did not take the stand.' I immediately caught myself and said, 'we are not to consider that, I am sorry.' " She acknowledged that another juror had also said the jury was not to consider Jesperson not testifying and said no further mention was made about the subject. She additionally noted that after the verdict was returned, she told Boyce, in response to his question about what everyone thought about Jesperson not testifying, that she had "wondered about it, but we did not consider it."

Juror No. 7 additionally conceded that during deliberations she had "agreed with one other juror that [she] would not have hired Mr. Boyce, since [she] did not think he did a good job in the trial," but claimed her comment was not part of the jury discussions. She noted she had never met Boyce before this trial and denied she had made a statement in deliberations similar to the one she remembered from the larger jury selection process made by a woman who was excused because she said "this is the kind of clients that Mr. Boyce likes to represent." Juror No. 7 declared she was "truthful in answering the Court's voir dire questions that [she] could be fair to both sides in this case."

Offers of proof by Jurors Nos. 1, 4, 6 and 12 agreed with Juror No. 7 that the fact Jesperson did not testify was not discussed by the jury as part of their deliberations on the charges. The other juror