Filed 10/30/26 P. v. Owens CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A169603
v.
GARY OWENS, (City & County of San Francisco
Super. Ct. Nos. SCN23391702,
Defendant and Appellant.
20011513)
A jury convicted Gary Owens of the second-degree murder of Ronisha
Cook, among other charges. Owens moved for a new trial after learning one
of the jurors both (1) concealed during voir dire that his biological mother,
like Cook, died as a result of gun violence and (2) discussed the case outside
of court with a defense witness while the jury was deliberating. The trial
court heard testimony from the defense witness and the juror then found the
juror had committed misconduct, but it denied the new trial motion after
finding there was no substantial likelihood the juror was actually biased
against Owens. The court imposed a sentence of 28 years to life. Owens
appeals the denial of the new trial motion and raises two small, unrelated
issues. We reverse.
1
BACKGROUND
On May 28, 2021, the San Francisco County District Attorney filed an
information charging Owens with murder (Pen. Code, § 187, subd. (a); all
undesignated references are to this code), attempted murder (§§ 187,
subd. (a), 664), assault with a firearm (§ 245, subd. (b)), shooting at an
occupied motor vehicle (§ 246), and unlawful possession of a firearm (§ 29800,
subd. (a)(1)). As to all but the last of these counts, the information also
alleged firearm enhancements: that Owens had personally used a firearm
(§ 12022.5, subd. (a)), discharged a firearm (§ 12022.53, subd. (c)), and
discharged a firearm causing great bodily injury and death (§ 12022.53,
subd. (d)). Owens was tried jointly with codefendant Robert Huntley, who
drove the vehicle Owens was in during the shooting.
Jury Selection
Jury selection began on March 29, 2023. Juror No. 7 was one of the
first potential jurors seated in the jury box. During voir dire, the court
advised potential jurors, “[E]ach side is entitled to have a fair[,] unbiased[,]
and unprejudiced jur[y]. If there’s . . . any reason why any of you might be
biased or prejudiced in any way, you must disclose such reasons when you’re
asked to do so. It is your duty to make this disclosure.” It then asked
potential jurors to raise their hand if they or “anybody who’s a relative of
yours, a close friend, or anyone you have a significant relationship with” had
“ever been a victim of a violent crime” or a “significant property crime.”
Potential jurors reported incidents of gun violence experienced by friends and
relatives; drive-by shootings near their homes; robberies; and car break-ins.
The court asked each disclosing juror follow-up questions about the incident:
the police response (if any), their satisfaction with any police response, and
whether the incident would affect their ability to be fair and impartial in the
2
case. Juror No. 7 did not raise his hand in response to the court’s question to
the entire panel, nor did he disclose his biological mother’s killing when
asked directly and personally by the court whether there was any reason he
could not be fair and impartial.
As potential jurors were excused and new potential jurors entered the
jury box, the court repeated the question about relatives or friends being
victims of violent crime, and some of the new potential jurors disclosed the
murder of extended family members; the shooting of romantic partners,
family members, friends, and neighbors; sexual assault; and break-ins. At
one point, when the court asked a new potential juror whether she had any
comments in response to the questions the court and counsel had posed to
other potential jurors, the potential juror responded, “Nothing that affects my
ability to be fair and impartial.” The court nonetheless followed up to ask if
the potential juror had any “positive responses to any of the questions,”
including whether any family members had been victims of crime. The juror
then disclosed that her parents’ home was broken into a number of years ago
in another state, commenting that she was not sure if the incident was
relevant. The court responded, “I’m glad you told us,” and asked several
more questions about the incident to probe for potential bias, including
whether her parents were harmed and whether they were satisfied with the
police response. Though this colloquy underscored that a juror’s self-
assessment of impartiality did not excuse them from answering the
questions, Juror No. 7 made no attempt to amend his earlier voir dire
responses and instead remained silent.
The jury, including Juror No. 7, and four alternates were sworn on
April 17, 2023.
3
Trial
At trial, the jury heard the following evidence: On December 19, 2019,
Owens attended a concert in San Francisco. The jury viewed surveillance
videos the prosecutor described as showing Owens and three other men
standing outside the venue after the concert. A red Audi drove by the group,
and two of the men began talking and pointing in the direction the Audi had
gone. Owens got into Huntley’s Black Honda Accord, sitting behind the
driver’s seat. Huntley drove in the same direction as the Audi, eventually
stopping to the right of the Audi near the intersection of Leavenworth Street
and Ellis Street. According to the prosecutor, the video showed Owens—
recognizable by his distinctive peach-colored sleeve—firing a gun out the
window at the Audi. The defense disputed the “blurry” video showed a gun.
The jury heard evidence nine millimeter and .40 caliber weapons were
fired and the Audi was hit with nine bullets. Jamal Raheem, who was
driving the Audi, sped away and eventually flagged down a California
Highway Patrol (CHP) vehicle for assistance. Raheem told the CHP officer
his girlfriend had been shot and the shots had come from a gray SUV. Cook,
who was sitting in the front passenger seat of the Audi, suffered multiple
gunshot wounds and was pronounced dead soon after.
A 911 caller described a red car leaving the scene and did not mention a
second car. An eyewitness told police he saw a red car with possibly three
people in it, one of whom was shooting into the air.
Owens called Raymond Davis, his boss at a beverage catering service,
to testify. Davis testified Owens was working with him at the concert venue
earlier the evening of the shooting. The venue had metal detectors and
wands, and employees had to pass through the metal detectors and be
wanded. As a result, it would have been impossible for Owens to bring a
4
firearm inside the concert venue. Huntley and the two other men identified
as having been in the car exercised their Fifth Amendment rights when
Owens called them to testify.
At the beginning of trial, consistent with section 1122’s requirements,
the court instructed the jury not to “talk about the case or about any of the
people or any subject involved in the case with anyone[,] not even your
family, friends, spiritual advisers, or therapists.” It also instructed, “During
the trial do not speak to any defendant, witness, lawyer[,] or anyone
associated with them. Do not listen to anyone who tries to talk to you about
the case or about any of the people or subjects involved in it. If someone asks
you about the case, tell him or her that you cannot discuss it. If that person
keeps talking to you about the case, you must end the conversation.”
Further, it instructed jurors that if any juror receives information about the
case from any source outside the trial, or if anyone tries to influence any
juror, they should “immediately tell the bailiff.” Throughout trial, the court
repeated admonitions to “[r]emember not to discuss the case, form or express
any opinions, discuss or let anyone talk to you about the case.”
Just a few days into trial, a juror reported to the court that he had
heard another juror and an alternate discussing the case, including witness
testimony and issues related to ballistics. The court questioned the reporting
juror, and the juror and alternate allegedly involved in the conversation. The
parties stipulated to excuse the juror at issue, and the court later excused the
alternate as well.
Jury Deliberation and Verdicts
The jury began deliberations on April 27, 2023. On May 2, the jury
reached verdicts of not guilty on the charges against Huntley, and he was
5
released from trial.1 The jury then reached guilty verdicts against Owens on
the counts alleging assault of Raheem, discharge of a firearm at an occupied
vehicle, and unlawful possession of a firearm. This was the following day,
according to the date the verdict forms were signed. The verdict forms show
the jury found Owens guilty of the attempted murder of Raheem on May 5,
and it found true the firearm use allegations on May 8. On May 10, the jury
informed the court it was hopelessly deadlocked on one count but unanimous
on a lesser included offense, and unanimous on all other charges. The court
then received the verdict forms for all counts except the murder of Cook.
The jury reported it was deadlocked six to six as to the first degree
murder count and as to the premeditation allegation, both of which the
prosecutor then withdrew. Minutes later, the jury found Owens guilty of the
second degree murder of Cook and found true the related firearm use
allegation.
Post-Trial Proceedings
On November 3, 2023, Owens moved to continue sentencing to allow
him to file a motion for a new trial. In support of the motion, Owens’ counsel
declared she learned during the week of May 15 that defense witness Davis
had spoken with Juror No. 7 on the evening of May 8, while deliberations
were ongoing.2 According to counsel’s declaration, Davis told her of a
1 Before the case went to the jury, the court granted Huntley’s section
1118.1 motion as to counts one and two (murder and attempted murder). The
jury found Huntley not guilty of counts three and five (assault with a firearm
and permitting shooting from a vehicle), and the prosecutor then dismissed
count six.
2 Although counsel alerted the court and the prosecution on May 26,
2023 to the possibility of a new trial motion, she did not disclose the
allegations of juror misconduct until November 3, 2023—nearly six months
after first learning of them. Like the trial court, we are concerned that this
delay may have violated counsel’s ethical duty to promptly report such
6
conversation he had with Juror No. 7 at a bar where Davis worked, including
a substantive discussion of Huntley’s acquittal, Owens’ criminal record, and
Juror No. 7’s expectation the jury would soon find Owens guilty.
Owens’ counsel directed a private investigator, Timothy O’Brien, to
investigate Davis’s claim, and O’Brien submitted a declaration in support of
the motion. O’Brien declared he was unable to discuss the allegations with
Juror No. 7, but he spoke with another juror who said Juror No. 7 told the
jury someone approached him at a bar or restaurant in Hayes Valley after
recognizing him from trial. The juror did not think Juror No. 7 had discussed
the trial with the person who approached him. The juror recalled Juror No. 7
had been “ ‘spooked’ ” by the encounter and the jury thought Juror No. 7
should tell the judge. A second juror generally agreed with the first’s
account, and a third did not recall Juror No. 7 mentioning the incident.
At a hearing on November 6, 2023, Davis testified about his
interactions with Juror No. 7. Davis said as he was leaving the courtroom
after completing his trial testimony, he recognized Juror No. 7 as a regular at
Brass Tacks, the bar where Davis worked as a doorman. According to Davis,
he saw Juror No. 7 walk past Brass Tacks on May 8 and Davis asked Juror
No. 7 if he was “ ‘still down there’ ” at “ ‘the courthouse.’ ” In response to
questions from the court, Davis estimated this first interaction occurred three
to four weeks after his testimony. Davis testified Juror No. 7 came inside the
bar and spoke with Davis for about 45 minutes about the case, discussing
Huntley’s acquittal, that the jury was leaning toward convicting Owens, and
that Juror No. 7 expected a verdict by May 10. Davis told Juror No. 7 Owens
information (see Cal. Rules of Professional Conduct, rule 3.5, subd. (j)), but
we will decline the Attorney General’s invitation to draw inferences against
Owens based on this delay.
7
prevailed in a different case related to a shooting but also spent time in
federal prison. Juror No. 7 told Davis he had a “soft spot” for the victim
because his mother had also been killed. Davis said Juror No. 7 was “tipsy”
during this encounter. According to Davis, Juror No. 7 eventually appeared
to realize he should not have been discussing the case, said “ ‘[o]ops,’ ” and
ended the conversation.
Davis testified that a week later, “after everything was over and done,
. . . [Juror No. 7] came back to the bar and he said he felt sorry” Owens was
convicted, given that “a lot of men, black men,” were convicted for “no
reason.” According to Davis, this second conversation lasted 25–30 minutes.
During the week of May 15, having learned of Owens’ conviction, Davis
contacted Owens’ counsel and disclosed his conversations with Juror No. 7.
The court excused Davis, closed the courtroom, and brought Juror No. 7
to the stand. Juror No. 7 provided a different account of his interactions with
Davis. He testified that toward the end of trial, after the jury had already
reached some verdicts, he was walking in Hayes Valley and someone asked
from across the street if he was “ ‘still down there at the courthouse.’ ” Juror
No. 7 responded that he was. A few days later, Juror No. 7 was in a bar
when the person asked him the same question. The person mentioned
Huntley’s acquittal, and Juror No. 7 acknowledged the jury was still working
through a “very detail-oriented process.” Juror No. 7 testified that he was
“not 100 percent certain,” but he believed he finished his drink and left
because he still had not placed Davis in his mind and did not understand how
Davis knew him. He denied discussing the case in any detail at that time
and denied being “buzzed.”
Juror No. 7 said one morning before the end of deliberations it “dawned
on” him Davis had been a witness. That day, when other jurors were
8
discussing how emotionally difficult they found the situation, Juror No. 7
shared that a witness had approached him at Brass Tacks, mentioned
Huntley’s acquittal, and asked how much longer the jury would be
deliberating. The foreperson asked Juror No. 7 if the incident would “taint
[his] verdicts at all in terms of being fair and impartial, and [he] said no.”
Juror No. 7 said he did not report the incident to the court because,
based on voir dire, he assumed the court would ask him if he could still be
fair and impartial. Because he believed he could be, he “didn’t want to
complicate things more,” especially since the jury “had already been
deliberating for such a long time and it seemed like [it was] making
headway.” Juror No. 7 conceded the encounters “unnerved [him] a bit extra,”
but he insisted they did not affect his verdicts. Specifically, when the court
asked whether the interactions with Davis made Juror No. 7 fearful he could
“come to harm” if he voted a certain way, or whether he was more likely to
convict as a result “because [you] don’t like people coming up and talking to
[you],” Juror No. 7 responded, “No.” Juror No. 7 also denied feeling pressure
from other jurors to conceal the interaction from the court and denied Davis
ever told him Owens had a federal conviction or had beat another case.
Juror No. 7 testified his next conversation with Davis was in late June
or early July, and it was then that he approached Davis and said, “ ‘Hey, you
know, just so you know, we did our due diligence, and I’m sorry.’ ” According
to Juror No. 7, he emphasized to Davis that he took the case very seriously
and attempted to explain “the complexities of [his] position here as a juror, as
a black man.” He shared personal experiences that drew him in competing
directions: On one hand, his mother had been killed, but on the other, he had
a cousin convicted for “something pretty equivalent to this case” that Juror
No. 7 did not believe the cousin had done. Juror No. 7 also told Davis he was
9
one of the first jurors called into the jury box, and when he realized he “was
one of the few black men” in the courtroom, it was “important for [him],
whether [he] fell on the side of innocence or guilty, to do [his] best and be as
fair as [he] could be.” He said he could easily have disqualified himself—
presumably by disclosing his mother’s killing—but he chose not to. He
denied saying he had a soft spot for the victim; instead, he testified he told
Davis he had “a soft spot for being a black man in general,” and he
“underst[oo]d that the system wrongfully convicts black men and [he] take[s]
that very seriously.”
Juror No. 7 insisted the disclosure of his mother’s death was during the
last conversation, after the jury had been discharged. He said his mother
was killed in 2008 and there had not been criminal proceedings. He admitted
he did not disclose his mother’s killing during voir dire for several reasons,
including that his biological mother’s sister and her husband, not his
biological mother, had raised him since he was a baby, and he did not have a
strong relationship with his biological mother. He left for college in Alabama
two weeks after her killing. The court did not further probe the
circumstances of the killing, Juror No. 7’s views of it, or the other reasons for
his decision not to disclose the killing during voir dire.
The court then provided counsel ten minutes to draft any additional
questions they wanted the court to ask Juror No. 7. Over Owens’ objection, it
refused to allow either party to question Juror No. 7 directly.
Owens moved for a new trial on December 13, 2023, and the court held
a hearing on December 18, 2023. In support of the motion, Owens’ counsel
declared she would have used one of her challenges to remove Juror No. 7
from the panel, had she known Juror No. 7’s biological mother had been
killed by gunshot. Davis and O’Brien also submitted declarations that
10
mirrored their testimony and previous declarations, respectively. Davis
declared he and Juror No. 7 had substantive discussions about the case while
deliberations were ongoing, including Owen’s criminal record and Juror
No. 7’s “soft spot in his heart for the woman who was shot and killed because
his own mother had been shot and killed.” O’Brien declared two other jurors
recalled Juror No. 7 being “spooked” by his encounters with Davis.
The court explained its ruling on the new trial motion on the record. It
first granted Owens’ request to consider the declarations attached to the new
trial motion, without objection from the prosecutor. Weighing the competing
testimony of Davis and Juror No. 7, the court seemed to credit Juror No. 7’s
testimony that the more substantive conversation occurred after the jury had
been discharged, but it generally found the timelines “murky.” The court
found the interaction that occurred during deliberations lasted only a few
minutes—certainly less than 45 minutes—and was initiated by Davis, not
Juror No. 7. The court found Juror No. 7 told other jurors about the
encounter, and they remembered him saying he was uncomfortable about it
and giving them the impression the conversation had not been substantive.
Faced with some uncertainty about the facts, the court “assume[d]”
Juror No. 7 had committed misconduct by conversing with Davis about the
case, even briefly. And it affirmatively found misconduct in Juror No. 7’s
failure to disclose during voir dire that his biological mother had been killed
by gunshot.
The court then articulated its reasons for finding the misconduct had
not been prejudicial. With regard to the contacts with Davis, the court noted
the juror’s testimony that he had not learned anything of substance from
Davis, and observed that Davis was not trying to share information that
would hurt Owens. With regard to the failure to disclose his mother’s killing,
11
the court did not make findings as to whether the failure to disclose was
intentional. Instead, it addressed whether his mother’s killing would have
caused Juror No. 7 to be biased. The court noted that the juror had not been
raised by his biological mother and did not have a close relationship with her.
And while acknowledging Juror No. 7 would have had “empathy for the
victim in this case,” the court expressed that everyone likely had empathy for
the victim because “[s]he got into someone’s car and she was driving home
after a concert and she was shot down.” “Also the juror took great pains to
indicate that he also felt empathy for and was driven by the notion that black
men in the United States are accused of crimes by a system that is not
necessarily fair to them and that he felt that keenly.” The court concluded
the juror’s brief conversation with Davis at the bar did not do “anything to
change Juror No. 7’s mission to provide . . . Mr. Owens with a fair trial.” And
considering “the entire record in the case,” including the time the jury spent
deliberating and the fact it was a “well argued case” with “skillful advocates”
and “detailed jury instructions,” the court found there was “no reasonable
probability of prejudice and no substantial likelihood that the Juror No. 7
specifically was actually biased against the defendant.” It added, “The Court
has decades of training” and “did not find that there was a particularly close
case.” It thus denied the motion for a new trial.
The court sentenced Owens to 15 years to life for second degree murder
and 3 years for assault with a firearm. It also sentenced Owens to 25 years
to life to be served consecutively for the section 12022.53, subsection (d)
enhancement but then, citing section 12022.53, subsection (h) and People v.
Tirado (2022) 12 Cal.5th 688, stayed the subsection (d) sentence and instead
imposed a ten-year consecutive term for the lesser included violation of
section 12022.53, subsection (b). It stayed the remaining sentences.
12
Owens timely appealed.
DISCUSSION
I. Juror No. 7’s Misconduct
“A juror who violates his or her oath and the trial court’s instructions is
guilty of misconduct.” (People v. Linton (2013) 56 Cal.4th 1146, 1194
(Linton).) “ ‘ “When a person violates his oath as a juror, doubt is cast on that
person’s ability to otherwise perform his duties.” ’ ” (Ibid.) Accordingly,
“ ‘[o]nce a court determines a juror has engaged in misconduct, a defendant is
presumed to have suffered prejudice. [Citation.] It is for the prosecutor to
rebut the presumption by establishing there is “no substantial likelihood that
one or more jurors were actually biased against the defendant.” ’ ” (In re
Manriquez (2018) 5 Cal.5th 785, 797 (Manriquez), italics omitted.) Unless
the prosecutor “rebuts that presumption by proof that no prejudice actually
resulted, the defendant is entitled to a new trial.” (People v. Pierce (1979) 24
Cal.3d 199, 207.)
“ ‘In determining whether juror misconduct occurred, “[w]e accept the
trial court’s credibility determinations and findings on questions of historical
fact if supported by substantial evidence.” ’ ” (Linton, supra, 56 Cal.4th at
p. 1194.) “Whether prejudice arose from juror misconduct, however, is a
mixed question of law and fact subject to an appellate court’s independent
determination.” (People v. Nesler (1997) 16 Cal.4th 561, 582 (lead. opn. of
George, C.J.) (Nesler); see also People v. Ault (2004) 33 Cal.4th 1250, 1263–
1265, 1267.)
“If we find a substantial likelihood that a juror was actually biased, we
must set aside the verdict, no matter how convinced we might be that an
unbiased jury would have reached the same verdict, because a biased
adjudicator is one of the few structural trial defects that compel reversal
13
without application of a harmless error standard.” (Nesler, supra, 16 Cal.4th
at p. 579.)
A. Juror No. 7 Committed Misconduct
Owens contends Juror No. 7 committed two types of misconduct:
(1) intentionally concealing during voir dire that his biological mother was
killed by gunshot, and (2) failing to report out-of-court interactions with a
defense witness that left him “unnerved.” We address these issues in turn.
“The law concerning juror concealment is settled.” (Manriquez, supra,
5 Cal.5th at p. 797.) “We begin with the general proposition that one accused
of a crime has a constitutional right to a trial by impartial jurors.” (In re
Hitchings (1993) 6 Cal.4th 97, 110 (Hitchings).) The impartiality of
prospective jurors is explored during voir dire, which “ ‘plays a critical
function in assuring the criminal defendant that his Sixth Amendment right
to an impartial jury will be honored.’ ” (Ibid., quoting Rosales-Lopez v.
United States (1981) 451 U.S. 182, 188.) Voir dire may “ ‘expos[e] possible
biases, both known and unknown, on the part of potential jurors.
Demonstrated bias in the responses to questions on voir dire may result in a
juror’s being excused for cause; hints of bias not sufficient to warrant
challenge for cause may assist parties in exercising their peremptory
challenges.’ ” (Hitchings, at pp. 110–111, quoting McDonough Power
Equipment, Inc. v. Greenwood (1984) 464 U.S. 548, 554 (McDonough) (plur.
opn. of Rehnquist, J.).)
“Of course, the efficacy of voir dire is dependent on prospective jurors
answering truthfully when questioned.” (Hitchings, supra, 6 Cal.4th at
p. 110.) “ ‘The prosecution, the defense and the trial court rely on the voir
dire responses in making their respective decisions, and if potential jurors do
not respond candidly the jury selection process is rendered meaningless.
14
Falsehood, or deliberate concealment or nondisclosure of facts and attitudes
deprives both sides of the right to select an unbiased jury and erodes the
basic integrity of the jury trial process.’ ” (Id. at p. 112.) “A juror who
conceals relevant facts or gives false answers during the voir dire
examination thus undermines the jury selection process and commits
misconduct.” (Id. at p. 111.)
Here, the trial court found that Juror No. 7 committed misconduct
when he concealed his biological mother’s killing during voir dire—a finding
no party contests.3 We agree. The court clearly asked the jury panel, which
at the time included Juror No. 7, whether “anybody who’s a relative of yours”
had “ever been a victim of a violent crime.” If so, “[p]ut your hand up,” the
court instructed. Juror No. 7 observed multiple potential jurors disclose a
range of violent crimes experienced by friends and family members, be
questioned by the court and counsel, and, in some cases, be excused. There is
no dispute that the killing of Juror No. 7’s biological mother was responsive
to the court’s question, and that he failed to disclose it. That failure
constitutes misconduct. (See Hitchings, supra, 6 Cal.4th at p. 111; People v.
Blackwell (1987) 191 Cal.App.3d 925, 929–930 (Blackwell) [juror who failed
to disclose personal experience with domestic violence and alcoholism in
response to specific questions committed misconduct].)
3 The Attorney General disputes there was record evidence Juror
No. 7’s mother was murdered as opposed to being the victim of some other
form of homicide, or that a gun was the cause of her death. On the latter
point, he ignores Davis’s declaration stating Juror No. 7 told him his mother
had been “shot and killed.” To the extent the Attorney General objects to the
declarations as hearsay, that objection was waived when the prosecutor failed
to raise it in opposition to the new trial motion or when the court ruled it
would consider the declarations. (See People v. Wheeler (1992) 4 Cal.4th 284,
300.)
15
Further, the record shows Juror No. 7’s concealment of his biological
mother’s killing was intentional. Juror No. 7 testified he did not disclose the
killing “for a few reasons, to be honest.” First, Juror No. 7 explained he did
not have a strong relationship with his biological mother, having been raised
by his mother’s sister. The Attorney General contends Juror No. 7’s
concealment was thus “due to an innocuous failure to consider her a
‘relative,’ ” but we disagree. A biological mother is a “relative” by any
definition of the word. Moreover, Juror No. 7’s biological mother was also his
adoptive mother’s sister, and he admitted he knew who she was, even if their
relationship was not close. Moreover, he readily mentioned his mother’s
killing when talking to Davis, a man he barely knew, which shows her death
was not a remote event he never thought about but something that was on
his mind in the context of the trial.
Unlike cases where the juror’s concealment is found to be inadvertent,
Juror No. 7 never claimed he was confused by the question or somehow forgot
about his mother’s killing. (See, e.g., People v. San Nicolas (2004) 34 Cal.4th
614, 644–646 [concealment inadvertent where juror believed a drug charge
had been dropped and testified a stabbing incident that happened 22 years
before never crossed his mind during voir dire].) Instead, Juror No. 7
testified he realized he was one of the few Black men in the courtroom and
felt it was important for him to serve on the jury, so he did not disqualify
himself, although he could have, presumably by disclosing his mother’s
killing. In other words, Juror No. 7 concealed his mother’s killing to avoid
the possibility it would be used to strike him from the jury.
Separately, it is also misconduct for a juror to “discuss a case with a
nonjuror during the course of a trial,” to “even inadvertently receive
information about a party or the case from a nonparty,” or “ ‘to communicate
16
with anyone associated with the case.’ ” (Linton, supra, 56 Cal.4th at
p. 1194.) Here, Juror No. 7 admitted to at least two interactions with Davis,
a defense witness, about the case, at least one of them while the jury was
deliberating. Faced with conflicting evidence about the timing, length, and
substance of the interactions, the trial court found the interaction during
trial was initiated by Davis, lasted no more than a few minutes, and did not
include detailed discussion of the case. Those findings are supported by
substantial evidence, primarily testimony from Juror No. 7 but also O’Brien’s
declarations recounting two jurors’ understanding that Juror No. 7 had not
discussed the substance of the case with Davis. We must accordingly defer to
them. (Ibid.)
The Attorney General goes a step further; he contends the trial court
concluded Juror No. 7’s interactions with Davis were not misconduct, and
that we must defer to this conclusion, too. That is not how we read the trial
court’s findings. Contrary to the Attorney General’s assertion, the trial court
said, “Even if we were to assume that Davis did provide Juror No. 7 some
general information . . . during that conversation, . . . regardless of whether
that’s true[,] juror misconduct is broadly defined to include any conversation
with outsiders. So I’m going to assume even a one or two minute conversation
that took place between Juror No. 7 and Davis was juror misconduct as very
generally defined.” (Italics added.) As a result, we reject the Attorney
General’s contention that the trial court made a finding of no misconduct to
which we must defer.
Instead, as the trial court correctly explained, it was misconduct for
Juror No. 7 to discuss the case, even briefly, with a defense witness while
deliberations were ongoing. (See People v. Jackson (2016) 1 Cal.5th 269, 333–
334 [jurors’ conversation with prosecution expert was misconduct]; Linton,
17
supra, 56 Cal.4th at p. 1194; People v. Ryner (1985) 164 Cal.App.3d 1075,
1082 (Ryner) [jurors’ “friendly conversation” with prosecution witness was
misconduct].) Because the trial court credited Juror No. 7’s account of the
early interactions, including that Juror No. 7 did not yet recognize Davis, we
cannot conclude this instance of misconduct was intentional. Still, the fact
that Juror No. 7 made a considered choice not to report the contacts to the
court once he realized who Davis was, despite knowing the contacts were
improper, is relevant to our independent review of prejudice below.4
B. The Presumption of Prejudice Was Not Rebutted
Juror No. 7’s misconduct raises a presumption of prejudice. (See
Manriquez, supra, 5 Cal.5th at p. 797.) Based on our independent review of
the record, we conclude for several reasons the prosecutor did not rebut that
presumption.
To begin, “intentional nondisclosure is strong proof that can sustain the
presumption of prejudice raised by juror concealment.” (Manriquez, supra,
5 Cal.5th at p. 805; see also Hitchings, supra, 6 Cal.4th at p. 120.) As our
Supreme Court has recognized, “ ‘[i]n most cases, the honesty or dishonesty of
a juror’s response [to a question on voir dire] is the best initial indicator of
4 The record is unclear what weight, if any, the trial court gave Juror
No. 7’s decision to withhold his interactions with Davis from the court.
Confusingly, the court said, “similar to the situation with not reporting the
juror misconduct when it was learned by counsel this court is not going to use
any of that substantive evidence of that. Mr. Owens is outside of his control
[sic] so the Court’s not going to consider that as any sort of basis to grant or
deny. The Court’s looking at whether there was juror misconduct.”
Owens interprets the court’s comments to mean it refused to consider
Juror No. 7’s failure to report the interactions with Davis as evidence of
misconduct, which he contends was error. The Attorney General counters
that Juror No. 7’s failure to report the interactions was not itself evidence of
misconduct. Because we independently review the record in assessing
prejudice, we need not resolve how the trial court treated this evidence.
18
whether the juror in fact was impartial.’ ” (Hitchings, at p. 119, quoting
McDonough, supra, 464 U.S. at p. 556 (conc. opn. of Blackmun, J.).) A juror
who intentionally conceals information to secure a place on the jury raises
particular concerns: “How can someone who herself does not comply with the
duty to tell the truth stand in judgment of other people’s veracity?” (Dyer v.
Calderon (9th Cir. 1998) 151 F.3d 970, 983 (en banc) (Dyer); see also Clark v.
United States (1933) 289 U.S. 1, 11 [position of juror who secures place by
fraud “is tainted in its origin”].)
On two separate occasions, once during voir dire and again during
deliberations, Juror No. 7 made a calculated decision to withhold highly
material information from the court and parties to preserve his place on the
jury and to avoid derailing deliberations. In doing so, he repeatedly placed
his own judgment about the relevance of the information and his ability to be
impartial above his oath as a juror and his duty to follow the court’s
instructions. That pattern of conduct casts doubt on his “ ‘ “ability to
otherwise perform his duties.” ’ ” (Linton, supra, 56 Cal.4th at p. 1194; see
Dyer, supra, 151 F.3d at p. 983 [“If a juror treats with contempt the court’s
admonition to answer voir dire questions truthfully, she can be expected to
treat her responsibilities as a juror—to listen to the evidence, not to consider
extrinsic facts, to follow the judge’s instructions—with equal scorn”].)
The subject of the concealed information further confirms the
substantial likelihood of bias. Juror No. 7’s biological mother was killed by
gunshot, just as Cook was.5 California and federal appellate courts have
found actual or implied bias in similar scenarios where a juror withheld
5 Since Juror No. 7 is a Black man, Owens’ trial counsel surmised his
biological mother was a Black woman, as was Cook. While this demographic
parallel only sharpens the comparison, it is not necessary to our analysis.
19
personal experience with the crime at issue, even when the juror insisted she
was impartial. In Blackwell, for example, the defendant asserted “ ‘battered
wife syndrome’ ” as a defense to charges of murdering her husband.
(Blackwell, supra, 191 Cal.App.3d at p. 927.) Jurors were voir dired about
personal experiences with alcoholism and domestic violence, and Juror R.
denied both. (Id. at p. 928.) After the jury convicted the defendant of second
degree murder, Juror R. “revealed that she was the victim of an abusive
former husband who became physically violent when drinking.” (Ibid.) She
also compared the victim to her former husband and opined the defendant
could have escaped the situation without violence, as she had. (Ibid.)
Finding Juror R. deliberately concealed her experience and was biased, the
court of appeal remanded for a new trial. (Id. at pp. 930–931.)
People v. Diaz (1984) 152 Cal.App.3d 926 (Diaz) reached a similar
result, even where the juror insisted she was impartial. There, the defendant
was charged with assault with a deadly weapon, a knife. (Id. at p. 930.)
During voir dire, Juror W. denied she or anyone close to her had been a
victim of a similar crime. (Id. at pp. 930–931.) After the People rested, Juror
W. “told court personnel she had been attacked at knife point during a rape
attempt, leaving a scar on her chin and had stabbed her assailant.” (Id. at
p. 931.) Juror W. explained to the court she had not considered the attack an
assault with a deadly weapon and said her experience would not bias her
perception of the case. (Ibid.) The trial court denied a motion to dismiss the
juror, but the appellate court reversed. It explained the probability of bias,
whether conscious or unconscious, was “substantial when a juror has been
victimized by the same type of crime.” (Id. at p. 939.) The average person
would “be affected in some way by their previous, identical experience.
Subconsciously, the juror may tend to favor the prosecution because of
20
emotional and psychological bonds perceived to exist with the defendant’s
victim. Indeed, the juror may sincerely try to be impartial, and yet be unable
to do so.” (Ibid.) As a result, the juror’s “self-serving statement regarding
her ability to deliberate impartially” was insufficient to overcome the
presumption of prejudice. (Id. at p. 932.)
In Dyer, the Ninth Circuit reached the same conclusion where a juror
in a murder trial concealed that her brother had been murdered, as well as
other information that may have jeopardized her place on the jury. (Dyer,
supra, 151 F.3d at pp. 973–974, 984.) When questioned by the court, the
juror claimed she thought her brother’s death had been an accident—a claim
easily disproven by information before the court. (Id. at pp. 975–979.) The
Ninth Circuit held the juror’s repeated lies, together with “her expressed
feeling that only she would decide what matters”—gave rise to a presumption
of bias and “fatally undermine[d] [its] confidence in her ability to fairly decide
[the defendant’s] fate.” (Id. at p. 984; see also United States v. Olsen (9th Cir.
2013) 704 F.3d 1172, 1192 [acknowledging application of implied bias
doctrine where “the juror in question, or a close relative, ‘has had some
personal experience that is similar or identical to the fact pattern at issue in
the trial’ ”]; United States v. Gonzalez (9th Cir. 2000) 214 F.3d 1109, 1113
[court erred by refusing to excuse juror in cocaine trafficking case whose ex-
husband’s cocaine trafficking led to breakup of family]; United States v.
Eubanks (9th Cir. 1979) 591 F.2d 513, 516–517 [remanding for new trial
where juror in heroin trafficking case concealed his sons were heroin users
serving prison sentences for crimes they committed in attempt to procure
heroin].)
The potential for bias here is not just theoretical. Davis testified under
oath Juror No. 7 told him he had a “soft spot” for the victim due to his own
21
mother’s killing. Davis repeated the same allegation in his declaration,
signed under penalty of perjury. Juror No. 7 disputed using those words,
claiming instead he had said he had a “soft spot for being a black man in
general.” The trial court did not resolve this factual dispute. Davis’s version
would be a more natural use of the phrase, but in any event the fact remains
Juror No. 7 clearly associated the victim’s experience with his mother’s—so
much so that his mother’s death was one of the few things he disclosed to
Davis when talking about his experience as a juror. The trial court equated
Juror No. 7’s comments with the type of empathy anyone would have for the
victim of random gun violence, but that is not what Juror No. 7 said. He
made a comparison between his mother’s killing and the victim’s, suggesting
a materially higher risk of bias—whether conscious or unconscious—than the
type of empathy any member of the public might feel. (See, e.g., Diaz, supra,
152 Cal.App.3d at p. 939.)
Juror No. 7’s feeling of unease after being approached by a defense
witness further supports the likelihood of bias. Juror No. 7 admitted the
interactions with Davis left him “unnerved a bit extra.” Other jurors recalled
Juror No. 7 being “spooked” by the encounters. The jury foreman was
concerned enough about the encounters that he asked Juror No. 7 whether
they would affect his verdict. Just as friendly juror conversations with
prosecution witnesses raise a risk that jurors will view those witnesses in a
more favorable light (see Ryner, supra, 164 Cal.App.3d at p. 1082), a negative
interaction with a defense witness—indeed, Owens’ only witness—raises the
opposite risk. While that risk is lessened by the brevity of the encounters
during trial, we still see Juror No. 7’s admitted discomfort as tending to
support the possibility of bias.
22
In our view, Juror No. 7’s testimony did not rebut the strong
presumption of prejudice. True, Juror No. 7 believed himself to be an
impartial juror, and one who was particularly sensitive to the fact that “the
system wrongfully convicts black men.” But courts repeatedly have cautioned
that jurors are unlikely to admit bias, significantly reducing the persuasive
value of a juror’s self-assessment of impartiality. (See, e.g., Manriquez,
supra, 5 Cal.5th at pp. 800–801 [disregarding findings based on juror’s
assessment of her own impartiality because “jurors are sometimes unaware
of their own biases, or are reluctant to admit to having biases”]; Diaz, supra,
152 Cal.App.3d at p. 939 [“Given the human propensity for self-justification,
it is entirely unlikely a juror who consciously failed to disclose information
during voir dire in order to sit in judgment would admit [bias]”]; Ryner,
supra, 164 Cal.App.3d at p. 1083 [“ ‘presumption of prejudice cannot be
overcome by a juror’s affidavit denying that misconduct had any effect on the
deliberations’ ”]; United States v. Sanchez (9th Cir. 2026) 175 F.4th 1134,
1156 [“ ‘juror’s good faith belief in his own impartiality is not dispositive’ ”].)
“Indeed, if the juror honestly, but falsely, believes he/she is impartial, no
amount of questioning will lead to an admission of bias.” (Diaz, at p. 939; see
also Smith v. Phillips (1982) 455 U.S. 209, 221–222 (conc. opn. of O’Connor,
J.) [“Determining whether a juror is biased or has prejudged a case is
difficult, partly because the juror may have an interest in concealing his own
bias and partly because the juror may be unaware of it”].)
Moreover, “Evidence Code section 1150 prohibits use of evidence of the
jurors’ subjective reasoning processes either to establish misconduct or rebut
the presumption of prejudice,” meaning Juror No. 7’s statements as to the
effect of the misconduct on his ability to fairly and impartially decide the case
23
cannot be considered.6 (Ryner, supra, 164 Cal.App.3d at pp. 1082–1083; see
Manriquez, supra, 5 Cal.5th at pp. 799–800; In re Carpenter (1995) 9 Cal.4th
634, 651–652 (Carpenter).) “ ‘The law, in its wisdom, does not allow a juror to
purge himself in that way.’ ” (Ryner, supra, 164 Cal.App.3d at p. 1083,
quoting People v. Phillips (1981) 122 Cal.App.3d 69, 81.) As a result, we can
give no weight to Juror No. 7’s testimony that he did not believe his
encounters with Davis would affect his ability to be fair and impartial, or his
responses to the court’s questions about whether the encounters influenced
his verdicts or changed his view of the evidence.
We understand Juror No. 7’s concern that as one of the few Black men
in the courtroom, his service on the jury could be particularly valuable, and
we appreciate his self-description as someone who did not “take . . . lightly”
his obligation to the justice system but was scrupulously careful to ensure
fairness (“dot[ted] my I’s and crossed my T’s”). But we cannot ignore that in
his eagerness to serve, this juror withheld from the court and the parties
information they needed to assess for themselves whether he could fairly hear
this case. In light of Juror No. 7’s conduct, we cannot say there is no
substantial likelihood that he was actually biased against the defendant.
(See Manriquez, supra, 5 Cal.5th at p. 797.)
Finally, the Attorney General argues that strong evidence of Owens’
guilt weighs against a likelihood of bias, citing Carpenter, supra, 9 Cal.4th at
p. 654. Owens responds that the strength of evidence of guilt is not part of
the inquiry. We conclude Owens has the better argument here. Carpenter
6 “ ‘[T]he rule against proof of juror mental processes is subject to the
well-established exception for claims that a juror’s preexisting bias was
concealed on voir dire.’ ” (Manriquez, supra, 5 Cal.5th at p. 800.) But that
exception does not encompass testimony about the effect of misconduct on a
juror’s verdict, as opposed to his state of mind during voir dire. (Ibid.)
24
acknowledged the juror bias inquiry is “ ‘different from, and indeed less
tolerant than,’ normal harmless error analysis, for if it appears substantially
likely that a juror is actually biased, we must set aside the verdict, no matter
how convinced we might be that an unbiased jury would have reached the
same verdict.” (Ibid.) Carpenter sanctioned consideration of the strength of
the evidence “when misconduct involves the receipt of information from
extraneous sources.” (Id. at p. 653.) But, deferring to the trial court’s factual
findings about Davis and Juror No. 7’s interactions, this is not “an
extraneous-information case.” (Id. at p. 654.)
We return, therefore, to our conclusion, based on our independent
review of the record, that there was a significant likelihood of bias, given
Juror No. 7’s intentional concealment of a similar crime against a family
member and his decision not to report an “unnerv[ing]” interaction with
Owens’ only witness. Juror No. 7’s self-assessment of impartiality—to the
extent not excluded under Evidence Code section 1150—does not overcome
the presumption that arises from his misconduct. In order to give force to the
constitutional guarantee to an impartial jury, we thus reverse and remand
for a new trial. (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16;
Nesler, supra, 16 Cal.4th at p. 578.)
Although our resolution of the juror misconduct issue moots the issues
Owens raises with respect to his sentence and the abstract of judgment, we
nevertheless exercise our discretion to address them to the extent they may
again become relevant in further proceedings. (See Filipino Accountants’
Assn. v. State Bd. of Accountancy (1984) 155 Cal.App.3d 1023, 1030.)
II. The Section 12022.53, Subdivision (d) Enhancement
“Penal Code section 12022.53 establishes a tiered system of sentencing
enhancements for specified felonies involving the use of firearms.” (People v.
25
McDavid (2024) 15 Cal.5th 1015, 1020.) Section 12022.53, subdivision (h)
authorizes courts to strike or dismiss certain enhancements in the interests
of justice under the authority of section 1385. (McDavid, at p. 1020;
§ 12022.53, subd. (h).) In exercising its discretion under section 12022.53,
subdivision (h), a court may strike a section 12022.53, subdivision (d)
enhancement for gun use causing death or serious bodily injury and impose a
lesser included, uncharged enhancement when the facts supporting the lesser
enhancement were alleged and found true by the jury. (McDavid, at
pp. 1020–1021; People v. Tirado (2022) 12 Cal.5th 688, 697–702.)
Here, the trial court explained it would “stay” the sentence for the
section 12022.53, subdivision (d) enhancement “pursuant to Penal Code
section 12022.53[, subdivision ](h)” and impose a sentence for a lesser
included enhancement under section 12022.53, subdivision (b), “which is gun
use.” We agree with the parties that the trial court erred by staying, rather
than striking, the section 12022.53, subdivision (d) firearm enhancement.
III. Abstract of Judgment
The parties also agree the abstract of judgment should be corrected
(1) to reflect the conviction for attempted murder, rather than “[a]ttempted
1st Deg Murder,” and (2) to remove the stricken section 12022.53, subdivision
(d) enhancement. We agree.
As the Attorney General correctly notes, attempted murder is not
divided into degrees. (People v. Bright (1996) 12 Cal.4th 652, 669, overruled
on another ground in People v. Seel (2004) 34 Cal.4th 535, 550.) If the jury
finds true an allegation the defendant attempted murder that was willful,
deliberate, and premeditated, the punishment is increased pursuant to
section 664, subdivision (a). (Bright, at pp. 665–666.) But that penalty
provision does not create degrees of attempted murder (id. at pp. 668–669),
26
and in any event, the prosecution withdrew this allegation, so the jury never
found it to be true. Accordingly, the abstract’s notation of a conviction for
attempted first degree murder was erroneous.
DISPOSITION
The trial court’s order denying a new trial is reversed.
TUCHER, P. J.
WE CONCUR:
FUJISAKI, J.
RODRÍGUEZ, J.
People v. Owens (A169603)
27