P. v. McCluney
Filed 8/7/13 P. v. McCluney CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
>
THE PEOPLE, Plaintiff and Respondent, v. JERRY WILLIAM MCCLUNEY, Defendant and Appellant. | D062263 (Super. Ct. No. SCD212842) |
APPEAL from
a judgment of the Superior Court
of
County, David M. Gill, Judge.
Affirmed.
Patrick
Morgan Ford, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General,
A. Natasha Cortina, Ronald A. Jakob, and Kelly Ann Johnson, Deputy Attorneys
General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Jerry William McCluney
appeals from a conviction and sentence after he obtained a reversal of his
convictions on two counts in a prior appeal and the case was remanded to the
trial court for further proceedings. In
the prior appeal, McCluney successfully argued that his convictions for
cocaine for sale should be reversed because the trial court failed to conduct a
hearing regarding alleged juror misconduct.
On remand, the trial court held a hearing and granted McCluney's motion
to release the jurors' contact information.
The trial court subsequently entertained McCluney's motion for a new
trial on the ground of juror misconduct, and denied the motion. The trial court then reinstated McCluney's
convictions on the two relevant counts.
In this
appeal, McCluney contends that the trial court erred in denying his motion for
new trial. According to McCluney, the
People failed to rebut the presumption that the jury misconduct, which involved
a juror referring to the dictionary definition of "intent" during
deliberations, was prejudicial. We
conclude that any presumption of prejudice was sufficiently rebutted in this
case. We therefore affirm McCluney's
reinstated convictions.
II.
FACTUAL AND
PROCEDURAL BACKGROUND
In April
2008, McCluney thought that his neighbor, Brian Goodin, had taken some of
McCluney's cocaine. McCluney went to
Goodin's house, shot him multiple times, and beat him with a baseball bat. (People
v. McCluney (Nov. 2, 2011,
D057015) 2011 Cal.App.Unpub. LEXIS 8368 [nonpub. opn.] (McCluney I).)
name="_ftnref1" title="">[1]
On January 23, 2009, a jury convicted
McCluney of assault with a firearm (Pen. Code, § 245, subd. (b); count 2)
and possession of cocaine for sale (Health & Saf. Code, § 11351.5; count
4). The jury found true the allegation
that in committing the assault in count 2, McCluney personally inflicted great
bodily injury (§ 12022.7, subd. (a)) and personally used a firearm (§ 12022.5,
subd. (a)). The jury was unable to reach
a verdict with respect to count 1, attempted murder, or count 3, assault with a
deadly weapon, and the trial court declared a mistrial as to those counts.
The People
elected to retry McCluney on counts 1 and 3.
On June 26, 2009, a
different jury convicted McCluney on count 3, assault with a deadly weapon (§
245, subd. (a)(1)), and found true the allegation that he personally used a
deadly weapon (a baseball bat), within the meaning of section 1192.7,
subdivision (c)(23), in the commission of the assault.. The second jury was also unable to reach a
verdict on count 1, the attempted murder charge. The court declared a mistrial as to count 1.
The trial
court sentenced McCluney to prison for a term of 21 years four months.
McCluney
appealed from the judgment of conviction and sentence, arguing, among other
things, that the trial court erred in failing to conduct a hearing regarding
alleged juror misconduct at the first trial, at which he was convicted on
counts 2 and 4. This court agreed with
McCluney that the trial court should have held a hearing regarding the alleged
juror misconduct, vacated McCluney's convictions on counts 2 and 4, and remanded
the case to the trial court for it to hold a hearing on McCluney's motions to
disclose the contact information for the members of the first jury.
On remand,
the trial court held a hearing pursuant to Code of Civil Procedure section 237
and granted McCluney's motion to release the jurors' contact information. Approximately six weeks later, McCluney moved
for a new a trial on the basis of juror misconduct.
On July 6, 2012, the trial court held a
hearing on McCluney's motion for a new trial.
The court denied the motion and reinstated McCluney's convictions on
counts 2 and 4. That same day, McCluney
filed a notice of appeal.
III.
DISCUSSION
McCluney
contends that a juror's misconduct in looking up a dictionary definition of
"intent" during deliberations in McCluney's first trial created juror
bias. He argues that the trial court
erred in denying his new trial motion because, he maintains, the prosecution
failed to rebut the presumption of prejudice from juror bias with respect to
this incident. We disagree.
A.
After the
jury in the second trial reached its verdict, McCluney requested that the court
release contact information for the jurors in the first trial, or set a hearing
pursuant to Code of Civil Procedure section 237. McCluney's request was based on evidence
discovered by a defense investigator that suggested there may have been juror
misconduct during deliberations in the first trial. The investigator said that he had spoken with
a juror from the first trial who told the investigator that " 'another
juror had looked up "intent" in a dictionary but did not comment on
the meaning of the word.' " This
juror told the investigator that " '[t]his occurred after the decision on
the lesser counts and prior to the jury hanging on the remaining count(s).'
" (McCluney I, supra, at
*26.) The trial court denied the
motion. (Ibid.)
On appeal,
this court concluded that the trial court had abused its discretion in not
conducting a hearing regarding the alleged juror misconduct. (McCluney
I, supra, D057015.) We vacated McCluney's convictions on counts 2
and 4 and remanded the case to the trial court for a hearing pursuant to Code
of Civil Procedure section 237. (
On remand,
the trial court held a hearing and granted McCluney's request to release the
jurors' contact information. McCluney
subsequently moved for a new trial, arguing that there had been prejudicial
juror misconduct in his first trial.
At a
hearing on the motion for a new trial,
the court heard testimony from Juror No. 8.
Juror No. 8 remembered a discussion in the jury room during
deliberations in McCluney's first trial concerning a dictionary. According to Juror No. 8, the jurors had been
"going around and around about intent" when one of the other jurors
said, " 'The dictionary says—.' "
Before that juror said anything more, the other jurors stopped him and
told him that he could not discuss what he had read in the dictionary. Juror No. 8 said that at the point that the
juror in question had mentioned the dictionary, the jury had "already
reached a verdict" on the counts on which the jury ultimately was able to
reach a verdict (counts 2 and 4). Juror
No. 8 could not recall whether anyone had actually brought a dictionary into
the jury room. Juror No. 8 did remember,
however, that the other jurors immediately told the juror who mentioned the
dictionary that they were not permitted to " 'look at anything else'
" and that the juror should not reveal anything else concerning what the
dictionary said about "intent."
The trial
court concluded that although McCluney had established juror misconduct, the
People had rebutted any presumption of prejudice resulting from that
misconduct. In reaching this conclusion,
the court determined that the juror who had consulted the dictionary had not
shared with the other jurors any definition that he had found. The court was also satisfied that no
dictionary had been taken into the jury room.
B. Legal standards
"The trial court is vested
with broad discretion to act upon a motion for new trial. [Citation.]
When the motion is based upon juror misconduct, the reviewing court
should accept the trial court's factual findings and credibility determinations
if they are supported by substantial
evidence, but must exercise its independent judgment to determine whether
any misconduct was prejudicial.
[Citations.]" (
809.)
Use of a dictionary by a juror
constitutes misconduct. (
642 (Karis).) "Jurors are not allowed to obtain
information from outside sources either as to factual matters or for guidance
on the law." (Ibid.; see also People v. Barton
(1995) 37 Cal.App.4th 709, 715.)
Juror misconduct involving the
receipt of extraneous information that was not part of the evidence received at
trial creates a presumption that the defendant was prejudiced by the evidence
and may establish juror bias. (
578 (Nesler).) This is because "[d]ue process means a
jury capable and willing to decide the case solely on the evidence before
it . . . ." (
217.)
Because juror misconduct gives rise
to a presumption of prejudice, the prosecution must rebut the presumption by
demonstrating that "there is no substantial likelihood that any juror was
improperly influenced to the defendant's detriment." (People
v. Clair (1992) 2 Cal.4th 629, 668 (Clair);
see also People v. Hardy (1992) 2
Cal.4th 86, 174 ["The presumption of prejudice may be rebutted, inter
alia, by a reviewing court's determination, upon examining the entire record,
that there is no substantial likelihood that the complaining party suffered
actual harm"].)
"We assess prejudice by a
review of the entire record. '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.' [Citation.]" (People
v. Tafoya (2007) 42 Cal.4th. 147,
192.)
"The first of these tests is
analogous to the general standard for harmless error analysis under California
law." (In re Carpenter (1995) 9 Cal.4th 634, 653.) " 'Under this standard, a finding
of "inherently" likely bias is required when, but only when, the
extraneous information was so prejudicial in context that its erroneous
introduction in the trial itself would have warranted reversal of the
judgment. Application of this
"inherent prejudice" test obviously depends upon a review of the trial
record to determine the prejudicial effect of the extraneous information.' [Citation.]" (People
v. Danks (2004) 32 Cal.4th 269, 303.)
" '[E]ven if the extraneous
information was not so prejudicial, in and of itself, as to cause
"inherent" bias under the first test,' the nature of the misconduct
and the 'totality of the circumstances surrounding the misconduct must still be
examined to determine objectively whether a substantial likelihood of actual
bias nonetheless arose.' [Citation.] 'Under this second, or
"circumstantial" test, the trial record is not a dispositive
consideration, but neither is it irrelevant.
All pertinent portions of the entire record, including the trial record,
must be considered. . . .'
[Citation.]" (
C. Analysis
The People
concede that the juror's conduct in referring to a dictionary constitutes
misconduct. (See Karis, supra, 46 Cal.3d at p. 642.) However, the People contend that the trial
court correctly determined that any presumption of prejudice from this
misconduct was rebutted because the juror's misconduct related only to the
attempted murder charge against McCluney, and the jury did not convict him of
that charge.
Because the
juror's conduct raises a rebuttable presumption of prejudice, the prosecution
had the burden to rebut the presumption by demonstrating that "there is no
substantial likelihood that any juror was improperly influenced to the
defendant's detriment." (
With
respect to the first test for determining whether there appears to be a
substantial likelihood of juror bias, that test requires that the extraneous
information to which the jury was exposed be examined in context. (Danks,
supra, 32 Cal.4th at p. 303.) Here, the trial court found that, at most, a
single juror was exposed to the extraneous material. This finding is supported by substantial
evidence. That extraneous material—i.e.,
a dictionary definition of "intent"—was not inherently or
substantially likely to have influenced that juror's verdicts on counts 2 and 4—the
only counts on which McCluney was convicted by that jury. According to Juror No. 8, by the time another
juror mentioned the dictionary definition of "intent," the jury had
already reached its verdicts on counts 2 and 4, and jurors were discussing only
whether McCluney had the requisite specific intent to be convicted of the
attempted murder charge. The jury was
ultimately unable to reach a verdict on the attempted murder charge. Given that all members of the jury had
already agreed that McCluney was guilty of counts 2 and 4, both of which
charged general intent crimes, the fact that a single juror may have looked at
a dictionary definition of the word "intent" was not inherently and
substantially likely to have influenced the jury's verdicts on counts 2 and 4.
Our inquiry does not end with our
conclusion that, judged objectively, a juror's reference to the dictionary
definition of "intent" was not inherently and substantially likely to
have influenced the verdict. We must
also " 'look to the nature of the misconduct and the surrounding
circumstances to determine whether it is substantially likely [that any
particular] juror was actually biased against the
defendant. . . .'
[Citation.]" (
conclusion that it is not substantially likely that the juror who obtained an
extraneous dictionary definition of "intent" was actually biased
against McCluney. The juror did not
bring up this information to the other jurors in a manner that indicated a
desire to use the information against McCluney.
Rather, it appears that this juror was simply involved in a misguided
effort to determine whether McCluney entertained the required mental state to
be convicted on the attempted murder charge.
The fact that the jury found
McCluney guilty only on counts 2 and 4, and did not reach verdicts on counts 1
and 3, also indicates that it is not substantially likely that any juror was
actually biased against McCluney. As was
made clear in McCluney I, supra,
D057015, McCluney testified at trial and essentially
admitted to having engaged in the conduct underlying his convictions on
counts 2 and 4. The fact that the jury
in the first trial convicted McCluney of only those two charges, and did not
convict him on the remaining counts, demonstrates that the jury deliberated
without actual bias against McCluney.
Because "there is no
substantial likelihood that any juror was improperly influenced to the
defendant's detriment" (Clair,
supra, 2 Cal.4th at p. 668), there is no basis for reversing McCluney's
convictions on counts 2 and 4 on the ground of juror misconduct.
IV.
DISPOSITION
The
judgment is affirmed.
AARON, J.
WE CONCUR:
NARES,
Acting P. J.
HALLER,
J.
name="_ftn1" title="">[1] The People filed an unopposed request for judicial notice of
the record in the prior appeal in this case.
We grant the request for judicial notice and refer to the record in the
prior appeal, as well as the unpublished opinion issued by the court, when
relevant to this appeal.
name="_ftn2" title="">[2] Further statutory references are to the Penal Code unless
otherwise indicated.
