Filed 8/24/26 P. v. Strange CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G064868
v. (Super. Ct. No. 18WF2186)
CYNTHIA ROBERTA STRANGE, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Lewis W. Clapp, Judge. Affirmed.
William J. Capriola, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General,
A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant Cynthia Roberta Strange appeals her conviction for
first degree murder, asserting the trial court erred in denying her motion for
a new trial on the grounds of jury misconduct. Finding no error, we affirm.
FACTS
Strange was charged with murdering her 92-year-old mother.
(Pen. Code, § 187, subd. (a).) The complaint further alleged she committed
the murder for financial gain. (Id., § 190.2, subd. (a)(1).)
Strange did not testify at trial. The trial court instructed the jury
she had an absolute constitutional right not to testify, and jurors could not
consider, for any reason, the fact she did not testify. (CALCRIM No. 355.)
During deliberations, the jury’s initial vote was six for guilty, and
six for not guilty. After three days of deliberations, the jury ultimately
convicted Strange of first degree murder but found the financial gain
enhancement not true.
Strange filed a motion for new trial on the grounds of jury
misconduct. In support, she submitted declarations from most of the jurors
attesting that during deliberations, they had discussed Strange’s failure to
testify in her own defense.
The trial court held a two-day evidentiary hearing, during which
all 12 jurors testified. As detailed below, the jurors gave conflicting testimony
on how long their discussion about Strange’s failure to testify lasted (with
most describing it as very brief, but a few recalling it as lasting 30 minutes).
They also gave conflicting testimony about whether anyone reminded them
during deliberations that such discussions were not permitted. However,
most jurors recalled being aware that they could not take Strange’s failure to
testify into account, and all 12 confirmed they gave no weight to her failure to
testify when evaluating the evidence and finding her guilty.
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The trial court determined that although the jury had committed
misconduct, the prosecution had rebutted the resulting presumption of
prejudice. The court therefore denied Strange’s motion for new trial and
sentenced her to 25 years to life in prison.
DISCUSSION
I.
APPLICABLE LAW
A criminal defendant’s Fifth Amendment right not to testify
against herself “would be vitiated if the jury could draw adverse inferences
from [her] failure to testify.” (People v. Leonard (2007) 40 Cal.4th 1370, 1424
(Leonard).) To minimize that danger and prevent the jury from drawing
adverse inferences, a criminal defendant may request that the jury be
instructed not to discuss her failure to testify. (Id. at pp. 1424−1425.)
Jurors commit misconduct when they disregard a trial court’s
instruction to not discuss a defendant’s decision to not testify. (People v.
Lavender (2014) 60 Cal.4th 679, 687 (Lavender).) That misconduct creates “a
presumption of prejudice, which may be rebutted by an affirmative
evidentiary showing that prejudice does not exist or by a reviewing court’s
examination of the entire record to determine whether there is a reasonable
probability of actual harm resulting from the misconduct.” (Ibid.)
Courts consider three factors when evaluating whether the
prosecution carried its burden of showing no prejudice: (1) “whether jurors
drew adverse inferences of guilt from defendant’s decision not to testify”; (2)
“the length of discussion about the topic”; and (3) “whether jurors were
reminded not to consider the defendant’s decision not to testify.” (People v.
Solorio (2017) 17 Cal.App.5th 398, 409−410 (Solario), citing Lavender, supra,
60 Cal.4th at pp. 689−690, 692.)
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In considering the first factor—whether jurors drew adverse
inferences of guilt from a defendant’s decision not to testify—courts look to
whether the jurors’ “‘comments go beyond natural curiosity and their content
suggests inferences from forbidden areas.’” (Solorio, supra, 17 Cal.App.5th at
p. 409.) “Comments of mere ‘wonderment and curiosity’ are normally
innocuous.” (Ibid.) For example, “merely express[ing] regret that [the]
defendant had not testified, because such testimony might have assisted the
jurors in understanding him better,” does not suggest the jurors “‘punish[ed]
the [d]efendant for not testifying.’” (Leonard, supra, 40 Cal.4th at p. 1425.)
By comparison, a comment like “‘“The defendant didn’t testify so he is
guilty”’” would suggest a juror drew an inappropriate inference. (Solorio, at
pp. 409–410.)
“The second rebuttal factor considers the length of discussion
about the topic.” (Solorio, supra, 17 Cal.App.5th at p. 410.) “‘“Transitory
comments of wonderment and curiosity” about a defendant’s failure to testify,
although technically misconduct, “are normally innocuous.”’” (People v.
Manibusan (2013) 58 Cal.4th 40, 59; see Leonard, supra, 40 Cal.4th at p.
1425 [“jury’s brief discussion of [defendant’s] failure to testify” was not
prejudicial]; contrast Solorio, supra, 17 Cal.App.5th at p. 410 [discussion was
prejudicial where topic was raised several times over the course of an hour];
People v. Cissna (2010) 182 Cal.App.4th 1105, 1122 [judgment reversed
because of juror’s extensive and “pervasive” daily discussions with non-juror
regarding defendant’s failure to testify and other matters].) The fact that only
some jurors recall comments about the defendant’s failure to testify tends to
suggest “the discussion was not of any length or significance.” (People v. Avila
(2009) 46 Cal.4th 680, 727.)
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“The third rebuttal factor—the crux of Lavender—considers
whether jurors were reminded not to consider the defendant’s decision not to
testify.” (Solorio, supra, 17 Cal.App.5th at p. 410.) Such a reminder, in the
absence of objective evidence otherwise, is “strong evidence that prejudice
does not exist.” (Lavender, supra, 60 Cal.4th at p. 687; see, e.g., People v.
Loker (2008) 44 Cal.4th 691, 749 [presumption of prejudice rebutted where
“the foreperson promptly . . . remind[ed] the jurors that defendant had a right
not to testify and that his assertion of that right could not be held against
him”]; People v. Hord (1993) 15 Cal.App.4th 711, 728 [no prejudicial
misconduct where jury briefly discussed defendant’s failure to testify but
foreperson admonished them they could not consider that fact].)
In an appeal challenging the denial of a motion for new trial
based on jury misconduct, “[w]e accept the court’s credibility determinations
and factual findings if supported by substantial evidence but independently
assess whether prejudice arose.” (Solorio, supra, 17 Cal.App.5th at p. 407.)
II.
THE PROSECUTION REBUTTED THE PRESUMPTION OF PREJUDICE
The People rightly concede the jury committed misconduct and
prejudice is presumed. We therefore must determine whether the prosecution
rebutted the presumption by establishing there was no substantial likelihood
that Strange suffered actual harm.
We first consider whether the jury drew any adverse inferences of
guilt from Strange’s failure to testify. Strange notes that two jurors (Nos. 174
and 183) said they wanted Strange to testify so she could defend herself, and
several others found her failure to testify “strange” or “weird” or noted it
would have been “nice” if she had testified. According to Strange, the
discussion therefore went well beyond a manifestation of curiosity—it
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demonstrated the jurors expected Strange to defend herself and prove her
innocence and suggested her failure to take the stand established her
culpability. We are not persuaded. Nothing in the jurors’ declarations or
testimony suggests they drew an adverse inference of guilt. To the contrary,
all 12 jurors testified they did not give any weight to Strange’s failure to
testify.
Next we consider the length of discussion about Strange’s failure
to testify. Three jurors (Nos. 142, 149, and 174) initially estimated that the
discussion lasted about 30 minutes. A majority of the jurors, however,
described the comments as “brief” or made in passing. And some did not
recall any details about the discussion, which further suggests it was not
significant.
Our final consideration is whether the jurors were reminded not
to consider Strange’s decision not to testify. Six jurors (Nos. 124, 132, 142,
174, 185, and 193) could not recall anyone reminding them during
deliberations that they were not to discuss Strange’s failure to testify.
However, three jurors (Nos. 114, 143, and 149) recalled someone reminding
them during deliberations that they could not consider the fact that Strange
did not testify. And more than half the jurors recalled the trial court’s
instruction, or confirmed they were otherwise aware, that Strange had a
right not to testify or the jury should not consider Strange’s failure to testify
when determining her guilt.
We recognize this record is a mixed bag, so to speak. Some jurors
described the discussion as quite brief; others suggested it was considerable
(30 minutes or more). Some jurors recalled being reminded they were not to
consider Strange’s decision not to testify; others did not. On balance,
however, there is nothing to suggest the jurors inferred guilt from Strange’s
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decision. To the contrary, the jurors either were reminded or were aware they
should not consider Strange’s decision not to testify, and they uniformly
testified they did not give her failure to take the stand any weight when
evaluating her guilt. On this record, there is not a reasonable probability of
actual harm resulting from the misconduct, and the trial court properly
denied Strange’s motion for new trial.
DISPOSITION
The judgment is affirmed.
SCOTT, J.
WE CONCUR:
MOORE, ACTING P. J.
DELANEY, J.
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