P. v. Pull

Filed 3/6/08 P. v. Pull CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Richard J. Oberholzer, Judge.

William Davies and John Hargreaves, under appointments by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Edward James Pull touched six-year-old R.R.s vagina through her clothing numerous times and twice had her touch his penis by gripping it with her right hand and going up and down in a motion. He had had hundreds of child pornography images, along with internet search histories for, inter alia, prime lolitas, on his computer. He struggled with sheriffs deputies during his arrest.

A jury found Pull guilty of three counts of lewd and lascivious and of one count of resisting an officer. (Pen. Code, 148, subd. (a)(1), 288, subd. (a).)^[1] The trial court sentenced him to an aggregate term of seven years in state prison the three-year mitigated term on one lewd and lascivious count, two years consecutively (one-third the middle term) on each of the other two lewd and lascivious counts, and six months concurrently on the resisting count.

ISSUES ON APPEAL

Pull raises nine challenges to the judgment.^[2] (1) He argues that the testimony of a district attorneys investigator and a deputy sheriff about R.R.s out-of-court statements violated the confrontation clause and the hearsay rule. (2) He challenges the sufficiency of the evidence on the two lewd and lascivious counts charging touchings of his penis. (2) He contends that the testimony of two detectives about R.R.s out-of-court statements violated the confrontation clause. (3) He claims ineffective assistance of counsel due to the absence of a defense motion to strike, motion for a mistrial, or request for a limiting instruction after the prosecutor adduced evidence about intervention by child protective services. (4) He argues that references during witness examination and jury argument to child pornography images constituted prosecutorial misconduct and that the admission in evidence of some of those images prejudiced him. He claims prejudicial instructional error on (5) unanimity, (6) consciousness of guilt, and (7) circumstantial evidence. (8)  He argues that errors at trial were prejudicial cumulatively even if harmless individually. (9)  He contends that the trial courts failure to conduct an evidentiary hearing on his new trial motion claim of juror misconduct constituted an abuse of discretion.

DISCUSSION

1. Confrontation Clause and Hearsay Rule

Pull argues that the testimony of a district attorneys investigator and a deputy sheriff about R.R.s out-of-court statements violated the confrontation clause and the hearsay rule. The Attorney General argues that Pull forfeited his confrontation clause claim by failing to object in the trial court and that neither his constitutional argument nor his hearsay argument has merit.

Preliminarily, we address the Attorney Generals forfeiture argument. Without a specific and timely objection on the ground sought to be urged on appeal, a reviewing court generally will not review a challenge to the admissibility of evidence. (People v. Alvarez (1996) 14 Cal.4th 155, 186.) Here, the record shows no confrontation clause objection at all and hearsay objections to some, but not all, of the statements at issue on appeal, so the Attorney Generals forfeiture argument has some merit. Nonetheless, in the interest of judicial efficiency, we will address Pulls confrontation clause and hearsay rule arguments alike to obviate the need to adjudicate ineffective assistance of counsel arguments. (People v. Williams (1998) 61 Cal.App.4th 649, 657 (Williams).)

On direct examination, the prosecutor questioned R.R. about seeing and touching Pulls penis.^[3] She testified to seeing it a total of about three times. She denied ever touching it. To the prosecutors question if she remembered talking to the investigator, she replied, No. To his question if she remembered telling the investigator she saw it only twice, she replied, No. To his question if she remembered telling the investigator she saw it only once, Pulls trial attorney interposed an objection on the ground the question was leading. The trial court responded, Well, I am presuming that, from his questions, hes attempting to give her an opportunity to respond before calling the witness to show a prior inconsistent statement. He has to do that for the witness. R.R. testified she did not remember telling the investigator that she saw Pulls penis once at his house or once in his car, or that she touched it with her hand or held it for two minutes, or that she last touched it the week before the police arrived at her house. On direct examination, Pulls trial attorney asked R.R. if she ever saw, or ever told the investigator that she saw, Pulls penis in his car. To both questions, she replied, No.

On direct examination, the prosecutor elicited testimony from both the deputy sheriff and the investigator about R.R.s replies to interview questions. Over defense hearsay objections, the trial court ruled admissible under the prior consistent statement exception the deputy sheriffs testimony that, in reply to his questions about touchings, she pointed to her vagina and said Pull touches me all the time there and wont leave me alone. Likewise, over defense hearsay objections, the trial court ruled admissible under the prior consistent statement exception the investigators testimony that, in reply to his questions about touchings, she demonstrated how Pull touched her in a bad way. Just before the latter ruling, the prosecutor justified his invocation of the prior consistent statement exception on the ground that [R.R.s] testimony was challenged by the defense through fabrication or through inconsistencies so his line of questioning was a mere way of demonstrating for the jury prior consistent statements she has given in the past. The investigator later testified, without objection, that she told him she touched Pulls penis, once in his house and once in his car, by gripping it with her right hand and going up and down in a motion.

The foundation of Pulls confrontation clause argument is Crawford v. Washington (2004) 541 U.S. 36, where the United States Supreme Court held the admission of out-of-court testimonial statements constitutionally permissible if the declarant is not available at trial and if the defendant had a prior opportunity to cross-examine the declarant. (Id. at pp. 42-59.) Here, the parties agree, and we concur, that R.R.s out-of-court statements were testimonial and that Pull had had no prior opportunity to cross-examine her, but the parties disagree whether or not she was available at trial.

Acknowledging that R.R. was physically at trial but emphasizing her testimony that Pull touched her vagina ten hundred times and her brother saw nothing because he was playing with his imaginary friend, Pull argues that for all intents and purposes she was not available at trial due to her age and her magical thinking.^[4] He argues, too, that at the close of direct examination she could not identify him. Noting that she appeared and testified at trial, the Attorney General counters that she was thoroughly questioned by defense counsel, that she denied making statements and remembering making statements, and that her fear of Pull delayed her in-court identification of him.

The record shows that the defense thoroughly cross-examined not only R.R. but also the investigator and the deputy sheriff who interviewed her. She denied making the statements the latter two witnesses testified she made. Conflicts like that in evidence at trial are common. By showing not that she could not identify Pull but that she did not identify him at the close of direct examination and that she did identify him at the close of redirect examination, the record illustrates that she was an understandably fearful witness, not that she was an incompetent or unavailable witness. Pulls arguments and the authorities he cites fail to persuade us that a confrontation clause violation ensued. (People v. Butler (2005) 127 Cal.App.4th 49, 59.)

So we turn from the confrontation clause to the hearsay rule. Established rules govern the scope of our review. No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal simply because given for a wrong reason. (DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19 (DAmico), disapproved on another point in Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 944.) The deferential abuse of discretion standard applies to our review of a trial courts hearsay rulings. (People v. Fields (1998) 61 Cal.App.4th 1063, 1067 (Fields).)

Pull emphasizes the trial courts duty to make an implicit determination that a witnesss in-court statement is feigned before admitting his or her out-of-court statement. (People v. Gunder (2007) 151 Cal.App.4th 412, 418.) The trial courts granting of the prosecutors motion right after he characterized R.R.s in-court statements as feigned memory loss did just that. (Ibid.) On that record, Pulls argument that the lack of specificity in R.R.s testimony invalidates some of the rulings admitting her out-of-court statements is not persuasive.

Our review of the record shows that some of the rulings Pull characterizes as hearsay rulings simply were not. As to some of the other rulings he challenges on the same ground, he and the Attorney General both acknowledge the apparent confusion among court and counsel in the trial court, perhaps on the part of the court reporter as well, about whether certain out-of-court statements that the prosecutor sought to admit were consistent or inconsistent. To that record, hardly a model of clarity, our application of established rules governing the scope of our review shows no abuse of discretion. (DAmico, supra, 11 Cal.3d at p. 19; Fields, supra, 61 Cal.App.4th at p. 1067.)

2. Sufficiency of the Evidence

Pull challenges the sufficiency of the evidence on the two lewd and lascivious counts charging touchings of his penis. The Attorney General argues the contrary.

In our analysis of Pulls argument, we apply the long-standing rule that section 288 is violated by any touching of an underage child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child. (People v. Martinez (1995) 11 Cal.4th 434, 452 (Martinez); cf. 288, subd. (a) [Any person who willfully and lewdly commits any lewd or lascivious act upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty .].) The record shows that Pull twice had R.R. touch his penis by gripping it with her right hand and going up and down in a motion. Consistently, the record shows that he repeatedly touched her vagina through her clothing and had hundreds of child pornography images, as well as internet search histories for, inter alia, prime lolitas, on his computer.

Our duty on a challenge to the sufficiency of the evidence is to review the whole record in the light most favorable to the judgment for substantial evidence evidence that is reasonable, credible, and of solid value that could have enabled any rational trier of fact to have found the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Prince (2007) 40 Cal.4th 1179, 1251.) In doing so, we presume in support of the judgment the existence of every fact a reasonable trier of fact could reasonably deduce from the evidence. (Prince, supra, at p. 1251.) By that standard of review, applicable to circumstantial evidence and direct evidence alike, substantial evidence of three counts of lewd and lascivious is in the record. (Ibid.)

3. Assistance of Counsel

Pull argues ineffective assistance of counsel due to the absence of a defense motion to strike, motion for a mistrial, or request for a limiting instruction after the prosecutor adduced evidence about intervention by child protective services. The Attorney General argues the contrary.

The questioning at issue commenced as follows. The prosecutor asked R.R.s mother, Now, as a result of this case, isnt it true your children were taken away from you? Pulls trial attorney objected on the ground of relevance, and the trial court sustained the objection. The prosecutor inquired, [R.R.s mother], you want your children to live with you again, dont you? Again, Pulls trial attorney objected on the ground of relevance. The trial court overruled the objection and instructed the witness to answer. Yes, I do want my children to come back to me, sir, R.R.s mother testified.

The prosecutor continued the same line of inquiry of R.R.s mother. He asked, [R.R.s mother], your child was taken away from you because of child endangerment?, to which Pulls trial attorney objected on the grounds of relevance and Evidence Code section 352. After argument by counsel, the trial court allowed the question, and the witness replied, Yes. The prosecutor then asked, You dont believe you endangered your child, though?, at which point Pulls trial attorney objected to the line of questioning. After hearing additional argument, the trial court sustained the objection under Evidence Code section 352 on the ground that the jury, not a social services organization, had the duty to decide whether Pull had molested R.R.

Later, the prosecutor inquired of R.R.s grandmother, In January, [R.R.] wasnt living with you, was she? Without objection, she replied, No, CPS had tooken [sic] her away. Shortly afterward, the prosecutor asked her, [Do] you want [R.R.] to come back and live with you? Pulls trial attorney objected to the line of questioning, but the trial court allowed the question, to which she replied, Yes, sir.

By guaranteeing access to counsels skill and knowledge and implementing the constitutional entitlement to an ample opportunity to meet the case of the prosecution, the right to counsel protects the due process right to a fair trial. (Strickland v. Washington (1984) 466 U.S. 668, 684-686 (Strickland).) Since the burden of establishing ineffective assistance of counsel on appeal requires a defense showing that counsels action or inaction was not a reasonable tactical choice, the issue is generally appropriate to habeas corpus, rather than on appeal. The record on appeal customarily sheds no light on why counsel acted or failed to act in the manner challenged. (People v. Jones (2003) 30 Cal.4th 1084, 1105.) That is so here, where the record shows neither that counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates nor that his acts or omissions resulted in the withdrawal of a potentially meritorious defense. (People v. Pope (1979) 23 Cal.3d 412, 425 (Pope), overruled on anotherground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)

Indeed, the record here suggests that counsel might well have made a reasonable tactical decision not to make a motion to strike, a motion for a mistrial, or a request for a limiting instruction in order to avoid emphasizing the evidence at issue. Counsel is best able in the heat of trial to determine proper tactics by gauging the jurys apparent reaction to the proceedings. (People v. Barnett (1998) 17 Cal.4th 1044, 1140.) Reviewing courts will not second-guess reasonable tactical decisions by counsel. (People v. Kelly (1992) 1 Cal.4th 495, 520.)

Even if his counsels performance were to have fallen below an objective standard of reasonableness, Pull cannot secure relief without showing a reasonable probability that but for his counsels performance the result of the proceeding would have been so different as to undermine confidence in the outcome. (Strickland, supra, 466 U.S. at pp. 693-694; People v. Ledesma (1987)43 Cal.3d 171, 217-218.) With an abundance of credible, persuasive, and trustworthy evidence of his guilt in the record, Pull fails to discharge his burden of proof that the absence of a motion to strike, a motion for a mistrial, or a request for a limiting instruction prejudiced him.

4. Child Pornography Images

Pull argues that references during witness examination and jury argument to child pornography images constituted prosecutorial misconduct and that the admission in evidence of some of those images prejudiced him. The Attorney General argues that by failing to object in the trial court Pull forfeited his right to appellate review of the issue and that no prosecutorial misconduct occurred.

Preliminarily, we address the Attorney Generals forfeiture argument. To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. (People v. Price (1991) 1 Cal.4th 324, 447.) Since the record here shows no objection to the prosecutors references, the Attorney Generals forfeiture argument has merit. Nonetheless, in the interest of judicial efficiency, we will address Pulls prosecutorial misconduct argument to obviate the need to adjudicate an ineffective assistance of counsel argument. (Williams, supra, 61 Cal.App.4th at p. 657.)

At the hearing on Pulls motion in limine, his counsel argued that the prejudice outweighed the probative value of allowing reference to child pornography images on his computer and of allowing the admission in evidence of images antedating the time when his roommate lost access to the computer. (Evid. Code, 352.) After argument, the trial court asked counsel to work out a stipulation for the admission in evidence of a small number of the 304 images antedating that time. A forensic computer expert later testified that the eight child pornography images admitted in evidence were representative of the 818 he recovered from deleted files on Pulls computer. In argument to the jury, the prosecutor characterized the 818 child pornography images on his computer as corroboration of the lewd and lascivious charges.

Although the parties disagree about whether the trial courts ruling on Pulls motion in limine barred the prosecutor from referring to 818 child pornography images during witness examination and jury argument, the difference between 818 and 304 is hardly material. The parties do agree that the ruling did not expressly address Evidence Code section 352, but no express statement about weighing prejudice against probative value or complying with the statute is required. (People v. Mendoza (2000) 24 Cal.4th 130, 178.) The record as a whole shows the trial courts requisite understanding and performance of the requirements of the statute. (People v. Riel (2000) 22 Cal.4th 1153, 1187-1188.)

If a prosecutors conduct infects the trial with such unfairness as to make the conviction a denial of due process, a federal constitutional violation occurs, and if a prosecutors conduct involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury, a state law violation occurs. (People v. Hinton (2006) 37 Cal.4th 839, 862-863, citing, e.g., Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643.) Here, the record shows neither.

5. Unanimity Instruction

On the premise that the standard unanimity instruction (CALCRIM No. 3500) as modified by the trial court fail[ed] to remedy the confusion engendered by the loosely worded standard lewd and lascivious instruction (CALCRIM No. 1110), Pull argues that reversal of all three lewd and lascivious counts is imperative. The Attorney General argues that by failing to object in the trial court Pull forfeited his right to appellate review of the issue and that by making an election in argument to the jury the prosecutor obviated the need for any unanimity instruction.

Preliminarily, we address the Attorney Generals forfeiture argument. The record shows no objection to the instructions Pull challenges. In light of the settled rule that a party may not complain on appeal that an instruction that is correct in law and responsive to the evidence is too general or incomplete unless the party has requested appropriate clarifying or amplifying language, the Attorney Generals forfeiture argument has merit. (People v. Hart (1999) 20 Cal.4th 546, 622.) Nonetheless, in the interest of judicial efficiency, we will address Pulls instructional argument to obviate the need to adjudicate an ineffective assistance of counsel argument. (Williams, supra, 61 Cal.App.4th at p. 657.)

Pull bases his argument on two instructions. First, he contends that CALCRIM No. 1110 required proof either that he willfully touched any part of [R.R.s] body or that he willfully caused [her] to touch his own body. (CALCRIM No. 1110.) He argues that the disjunctive wording of the instruction could have allowed the jury to find him guilty of touchings other than those the evidence showed at trial. The instruction as given, he says, does not require the jury to make a specific finding as to who touched whom and on which date the touching occurred. He is correct.

Second, Pull argues that the trial court inexplicably limited the application of CALCRIM No. 3500 to the lewd and lascivious count charging that he touched her body. Again, he is correct. CALCRIM No. 3500 as modified acknowledged evidence of more than one act to prove that [he] committed this offense and prohibited jurors from finding him guilty unless you all agree he committed at least one of these acts and you all agree on which act he committed but expressly limited the application of that prohibition to that count alone.

Nonetheless, the trial court instructed the jury of the requirement that its verdict on each count be unanimous. (CALCRIM No. 3550; italics added.) This means, the instruction emphasized, that, to return a verdict, all of you must agree to it. (Id.; italics added.) The prosecutor opened his argument to the jury by identifying with precision the conduct at issue in each of the lewd and lascivious counts. The first was the molest that occurred at [Pulls] house when he touched her [vagina] with his hand. The second was the molest that occurred when [he] had [R.R.] touch his penis with her hand in the vehicle. The third was the molest that occurred when [he] had [her] touch [his] penis while at his house. Later, the prosecutor identified the conduct at issue in the lewd and lascivious counts as one count of Pulls touching [R.R.s vagina] ten hundred times and the two counts of R.R.s touching [his] penis, two times, which resulted, he argued, in [Pulls having] molested [R.R.] three times.

At the end of his argument to the jury, the prosecutor confirmed his election by defining with care the first lewd and lascivious count as [Pull] touching [R.R.] at his house, the second as [R.R.] touching [his penis] in his car, and the third as [R.R.] touching [his penis] at [his] house. The trial court insisted that the prosecutor note on the lewd and lascivious verdict forms the specific acts that youre claiming on those three counts. On verdict forms so drafted, the jury expressly found him guilty, respectively, of [Pull] touching [her] vaginal area at [his] house, of [R.R.] touching [his] penis in [his] vehicle, and of [R.R.] touching [his] penis at [his] house.

Either the prosecutor must select the acts relied on to prove the charges, or the jury must be given an instruction that it must unanimously agree beyond a reasonable doubt that the defendant committed the same specific criminal act. (People v. Jones (1990) 51 Cal.3d 294, 307.) If the prosecution is to communicate an election to the jury, its statement must be made with as much clarity and directness as would a judge in giving instruction. The record must show that by virtue of the prosecutors statement, the jurors were informed of their duty to render a unanimous decision as to a particular unlawful act. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1539.) On the record here, despite the inexplicable limitation of CALCRIM No. 3500 to one of the three lewd and lascivious counts, the trial courts instructional error was harmless beyond a reasonable doubt. (Melhado, supra, at p. 1536, citing Chapman v.California (1967) 386 U.S. 18, 24.)

6. Consciousness of Guilt Instruction

Pull argues that the instruction on consciousness of guilt prejudiced him.. The Attorney General argues the contrary.

Over Pulls objection, the trial court instructed that if he tried to hide evidence against him his conduct could show he was aware of his guilt and that if the jury were to find he made such an attempt the jury was to decide its meaning and importance but that evidence of such an attempt cannot prove guilt by itself. (CALCRIM No. 371.) The parties disagree on whether there was a sufficiency of the evidence to warrant the instruction.

Pull emphasizes the forensic computer experts opinion that deletion of most of the child pornography images from his computer likely occurred on December 16 and the deputy sheriffs testimony that law enforcements first contact with R.R. was on the next day (December 17).^[5] Arguing that the so-called destruction of evidence took place before the police had even gone to [R.R.s] house, he characterizes the instruction as improper.

The Attorney General stresses the experts testimony that he did not believe he documented the deletion dates on a lot of these items and the deputy sheriffs testimony that on December 20 Pull admitted deleting all of the files from his computer two days ago (December 18). Arguing that there was some evidence in the record which, if believed by the jury, was chronologically sound and would sufficiently support the suggested inference that [Pull] was aware of his guilt, he characterizes the instruction as proper. Whether the file deletion occurred before or after law enforcements first contact with R.R., or both, he argues that deletion of the child pornography images from his computer supports an inference that he was aware of his guilt.

A consciousness of guilt instruction makes clear to the jury that certain types of deceptive or evasive behavior on a defendants part could indicate consciousness of guilt, while also clarifying that such activity was not of itself sufficient to prove a defendants guilt, and allowing the jury to determine the weight and significance assigned to such behavior. (People v. Jackson (1996) 13 Cal.4th 1164, 1224.) Here, we agree with the Attorney General that there was a sufficiency of the evidence to warrant the instruction. The jury was entitled to know how to assess that kind of evidence. CALCRIM No. 371 served that purpose.

7. Circumstantial Evidence Instruction

Pull argues that even though the trial court gave the standard instructions on direct and circumstantial evidence defined (CALCRIM No. 223) and on the sufficiency of the evidence of circumstantial evidence (CALCRIM No. 224) the trial courts failure to give the standard instruction sua sponte on circumstantial evidence and intent or mental state (CALCRIM No. 225) constituted prejudicial error. The Attorney General argues the contrary.

Noting that the controlling factor in a lewd and lascivious case is the purpose of the perpetrator in touching the child (Martinez, supra, 11 Cal.4th at p. 444), Pull emphasizes that the prosecutor had to rely heavily on circumstantial evidence to show he touched R.R. with the intent of arousing, appealing to, or gratifying [his or her] lust, passions, or sexual desires. ( 288, subd. (a).) The Attorney General counters with the rationale that the only inference that can be reasonably drawn from the circumstantial evidence is that [Pull] touched R.R. with the requisite intent and argues that CALCRIM Nos. 223 and 224 adequately explained circumstantial evidence to the jury.

The Attorney Generals argument is persuasive. As Pulls trial attorney argued to the jury, his defense was not that he touched R.R.s vagina and that he had her touch his penis without the requisite statutory intent but simply that there were no touchings at all. The notion that those touchings occurred without the requisite statutory intent was simply not one the jury could reasonably draw from the circumstantial evidence. On that record, no sua sponte duty ever arose for the trial court to give CALCRIM No. 225. (People v. Honig (1996) 48 Cal.App.4th 289, 341.) The trial court adequately instructed the jury on circumstantial evidence with CALCRIM Nos. 223 and 224. (Cf. People v. Cook (1982) 135 Cal.App.3d 785, 795.)

8. Cumulative Error

Pull argues that errors at trial were prejudicial cumulatively even if harmless individually. The Attorney General argues the contrary. Since our review of the entire record discloses only one error, an inexplicable but harmless instructional anomaly, no showing of cumulative error is possible. (People v. Bradford (1997) 15 Cal.4th 1229, 1344; see ante, part 5.) A defendant is entitled to a fair trial but not a perfect one. (Lutwak v. United States (1953) 344 U.S. 604, 619.) Pull received a fair trial.

9. New Trial Motion

Pull argues that the trial courts failure to conduct an evidentiary hearing on his new trial motion claim of juror misconduct constituted an abuse of discretion and that by failing to invoke the statutory procedure to investigate the matter by gaining access to the jurors his trial attorney rendered ineffective assistance of counsel. The Attorney General argues the contrary.

Attached to Pulls new trial motion were the declarations of R.R.s mother and grandmother to the effect that, first, a juror approached them during trial, asked them who they were and what they were doing, and walked away after they answered and, second, the forensic computer expert told someone on his cell phone that a witness talking to a juror could cause a mistrial and that he was a good cop trying to charge a child molester. The prosecutor argued in opposition that the declarations were inadmissible hearsay and that nothing that occurred was substantially likely to have influenced the juror. Pulls trial attorney argued in response that the declarations were admissible non-hearsay and that prejudicial juror misconduct occurred. The trial court heard argument and denied the motion without comment.

The governing law is settled. Since the decision whether to investigate possible juror bias, incompetence, or misconduct lies within the sound discretion of the trial court, the decision not to investigate any and all new information about a juror after voir dire, without more, fails to show an abuse of discretion. (People v. Ray (1996) 13 Cal.4th 313, 343.) Only if the trial court possesses information which, if proven to be true, would constitute good cause to doubt a jurors ability to perform his [or her] duties and would justify his [or her] removal from the case is a hearing required. (Id.) The information in the declarations here is similar to the evidence the juror at issue was about to hear at trial and to the inferences she was likely to draw from that evidence. Nothing in either declaration suggested she behaved inappropriately once she found out that R.R.s mother and grandmother were going to testify. The trial court must make whatever inquiry is reasonably necessary only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. (People v. Hayes (1999) 21 Cal.4th 1211, 1255 (Hayes).) The requisite showing is entirely absent from the record here.

As he did in his new trial motion, Pull argues that the declarations of R.R.s mother and grandmother were not hearsay. He is mistaken. Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (Evid. Code, 1200, subd. (a).) Normally, hearsay is not sufficient to trigger the courts duty to make further inquiries into a claim of juror misconduct. (Hayes, supra, 21 Cal.4th at p. 1256.) That is so here.

Finally, Pull argues that his trial attorney rendered ineffective assistance of counsel by failing to invoke the statutory procedure to investigate the matter by gaining access to the jurors. (Code Civ. Proc., 237, subd. (b).) The record shows neither that his trial attorney failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates nor that his acts or omissions resulted in the withdrawal of a potentially meritorious defense. (People v. Pope, supra, 23 Cal.3d at p. 425.) His entirely speculative argument is meritless.

DISPOSITION

The judgment is affirmed.

_____________________

Gomes, J.

WE CONCUR:

_____________________

Vartabedian, Acting P.J.

_____________________

Kane, J.

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^[1]All statutory references are to the Penal Code except where otherwise noted.

^[2]Since Pull addresses all nine of his challenges to the lewd and lascivious counts, we will omit all later mention of the resisting count.

^[3]Although R.R. used the terms big gooey and gooby to refer to a penis, we use the standard anatomical designation instead.

^[4]Although R.R. used the term cookie and both the investigator and the deputy sheriff used the term private area to refer to a vagina, we use the standard anatomical designation instead.

^[5]All dates are 2005 unless otherwise specified.