14
P. v. Trujillo
Filed 1/30/14 P.
v. Trujillo CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
DANIEL TRUJILLO,
Defendant and Appellant.
B246471
(Los
Angeles County
Super. Ct. No. PA 069566)
APPEAL from a judgment
of the Superior Court for the County of
Los Angeles. Cynthia L. Ulfig, Judge. Affirmed as modified.
Linn Davis, under
appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Linda C. Johnson, and Theresa A.
Patterson, Deputy Attorneys General,
for Plaintiff and Respondent.
_______________________________
SUMMARY
Defendant
Daniel Trujillo contends his convictions of attempted voluntary manslaughter
and discharge of a firearm with
reversed because two jurors prejudged the case, violating his constitutional
right to trial by an impartial jury. His
claim is based on an affidavit from another juror stating, among other things,
that shortly after deliberations began, two jurors (one of them the foreperson)
“both stated that they knew [defendant] was guilty from the minute they walked
into the courtroom, and decided he was guilty before the trial even started.†The trial court refused to grant a new trial
based on jury misconduct, finding the allegations in the juror affidavits did
not present evidence of misconduct and reflected bias in favor of defendant.
We
order a modification of the judgment and corrections to the abstract of
judgment that are undisputed by the parties, and otherwise affirm the judgment.
FACTS
The Crimes
The
prosecution’s evidence showed that Vincent Villa, the victim in this case,
drove to Santa Clarita to see Stephanie Diaz, the mother of his young son. Mr. Villa and Ms. Diaz were intimate, but
their relationship was not exclusive, and Mr. Villa’s visit was not expected. When he arrived, he parked and went to her
mobile home. He found Ms. Diaz in
bed watching television with defendant. Ms. Diaz
started yelling at Mr. Villa, and her roommate, Alejandra Valdez, told Mr. Villa
to leave.
Mr. Villa turned
and was walking out the door when defendant got up and grabbed a rifle, similar
in appearance to an AR-15 rifle.
Defendant suggested they go outside, and Mr. Villa heard a clicking
sound and saw defendant make a motion as though he were loading the rifle. Mr. Villa walked directly to his car,
where he kept a .32-caliber semiautomatic handgun. There were three rounds in the magazine, and
he loaded a round into the chamber. Mr.
Villa looked over his shoulder and saw a muzzle flash, put his head down and
began driving away. He heard about 13
gunshots and felt impacts to his back, the top of his neck and his
behind it and called 911, then lost consciousness. Mr. Villa’s car had bullet holes in the
side, the driver’s side window, the front windscreen, the rear window on the driver’s
side, the glove box, the dashboard, the driver’s headrest, one of the wheels,
and the rear window, and the front windshield glass was shattered.
Mr. Villa said
he did not bring his gun into Ms. Diaz’s residence, and did not fire it or
raise it at any time during the incident.
Ms. Diaz said Mr. Villa had a gun tucked into his waistband when he came
in; that he was angry, and he and defendant started arguing; that Mr. Villa
left after about five minutes; and that she unsuccessfully tried to restrain
defendant from walking out of the bedroom with the rifle.
One of Ms.
Diaz’s neighbors, a child living in mobile home unit 314, was awakened by the
sound of gunshots and went into his mother’s room. The next day, he found bullet holes in his
bedroom window and his mattress. The
police found eight bullet holes in that mobile home. Another neighbor, who was familiar with
firearms, heard 10 to 12 gunshots; saw a white car drive out of the
trailer park complex; and called 911. He
thought nine or ten shots came from a high-caliber firearm, and two or three
came from a lower caliber firearm. The
police found no bullet holes in Ms. Diaz’s unit or any of the mobile homes
surrounding her unit, and no evidence that a gun had been fired in that
direction. Detective Adam Dorman
searched Mr. Villa’s car at the tow yard and found no indication that a gun had
been fired from inside the car.
Deputy Sheriff
Chris Craft found Mr. Villa near the Jiffy Lube after receiving a report about
a gunshot victim, and found his car with multiple bullet holes and the windows
shot out. He found a loaded .32-caliber
handgun under the driver’s seat, with two live rounds in the magazine and one
round in the chamber, with the hammer in a firing position. Deputy Craft found no shell casings in the
car or its immediate vicinity. He then
went to the mobile home park and found three shell casings near Ms. Diaz’s
mobile home; they appeared to be rifle rounds.
Ms. Diaz told
police that she moved to Victorville a few days after the shooting, and that
defendant came to her new apartment and threatened her with a gun because he
wanted to be sure he could trust her; she assured defendant she would not tell
anyone about the shooting.
Detective
Patrick O’Neill arrested defendant in Victorville a few months later, and defendant
denied any involvement in the shooting. While defendant was in jail after his arrest,
he made a recorded telephone call in which he said he was “not here for acting
good. You know, I’m not here for being
on good behavior.â€
The Trial
Defendant was
charged with the willful, deliberate, premeditated attempted murder of Mr.
Villa (count 1, Pen. Code, §§ 664, 187, subd. (a)),
allegations (§ 12022.53, subds. (c) & (b)); assault with a firearm (count
2, § 245, subd. (a)(2)); shooting at an occupied motor vehicle (count 3, §
246); and discharging a firearm with gross negligence (count 5, § 246.3, subd.
(a)).
At trial, the
parties stipulated that defendant was present at Ms. Diaz’s residence, and that
defendant was the person who fired a gun at Mr. Villa while defendant was
standing outside of Ms. Diaz’s mobile home.
The facts we
have recited were elicited, and defendant then testified on his own
behalf. He said that Ms. Diaz had told
him Mr. Villa was violent and had a temper.
Ms. Diaz had described to defendant several incidents in which Mr.
Villa had hit Ms. Diaz or otherwise acted aggressively toward her, and she
told defendant that Mr. Villa always carried a gun and had committed a
driveby shooting. This information
alarmed defendant, so he brought an AR-15 rifle with him when he came to stay
at Ms. Diaz’s residence.
When Mr. Villa
appeared with a gun in his waistband on the night of the shooting, defendant
was scared. Mr. Villa was waving his gun
around, his voice got louder and louder, and when it seemed Mr. Villa was not
going to leave, defendant stood up and grabbed his rifle. Mr. Villa went outside. Defendant went outside because he was afraid
Mr. Villa would come back and shoot into or at Ms. Diaz’s mobile home. Defendant was worried that Mr. Villa had not
left yet, and feared for Ms. Diaz, her roommate Ms. Valdez and Ms.
Valdez’s children, all of whom were inside the mobile home. When defendant went outside, Mr. Villa was
facing defendant and walking backwards towards the parking lot.
Mr. Villa got in
his car. Defendant thought Mr. Villa was
going to leave, but he stuck his hand out of the driver’s side window, and
there was a muzzle flash. Defendant
thought Mr. Villa was shooting at him as something flew by his face. Defendant squeezed the trigger of his rifle “like
there was no tomorrow.†Mr. Villa
continued shooting at defendant, three or four times, and then drove away. Defendant was not trying to kill Mr. Villa.
Ms. Diaz
testified she had told defendant about the several incidents involving Mr. Villa’s
violent behavior.
Ms. Valdez
testified that Mr. Villa had a gun in his waistband. Ms. Diaz was screaming at Mr. Villa. Defendant looked mad, and Mr. Villa looked
like he was in shock. Ms. Valdez told Mr.
Villa he should leave, and about a minute later, Mr. Villa left. She did not see either man point a gun at the
other. When she later looked out the
door, Mr. Villa was still standing outside and looked like a zombie.
Detective
O’Neill was shown a photograph of the driver’s side rear passenger door of Mr.
Villa’s car, and acknowledged he could not tell from the photograph whether the
bullet hole depicted was caused by a bullet fired from outside or inside the
car.
The jury found
defendant not guilty of attempted murder, but guilty of the lesser included
offense of attempted voluntary manslaughter.
The jury found true an allegation that defendant personally and
intentionally discharged a firearm within the meaning of section 12022.5,
subdivision (a). The jury also found
defendant guilty of discharging a firearm with gross negligence (count 5), but
not guilty of assault with a firearm (count 2) and shooting at an occupied
motor vehicle (count 3). The jury was
polled and each juror affirmed that this was his or her verdict.
3.
The Posttrial Motions
A few weeks
after the verdicts were returned, defendant petitioned to unseal confidential
juror information. His petition was
supported by a declaration from counsel recounting interviews with jurors that
suggested three other jurors believed defendant was guilty of all charges from
the outset and nothing could be done to change their minds, “essentially
thwarting any deliberations.†The trial
court denied the petition, finding defendant failed to make a prima facie
showing of good cause for the release of juror information.
Several months
later, defendant filed a motion for a new trial, supported by three juror
affidavits. Defendant argued the
affidavits were admissible as statements of overt acts that were open to sight
and hearing and subject to corroboration, not statements related to the jurors’
subjective reasoning processes; that the court “should exercise its discretion
and conduct an evidentiary hearing to determine whether the extent of the
misconduct requires a new trialâ€; and that when misconduct is found, prejudice
is presumed “unless the Prosecution can rebut this presumption,†and “despite
the presumption of prejudice, this Court should be offended that seated Jurors
in this case decided Mr. Trujillo’s guilt before the trial even began.â€
The
supporting affidavits were as follows.
Juror A.P.V.
Juror
A.P.V. stated that, immediately after the jury began to review the evidence,
and before any meaningful discussion about what the evidence showed, Juror No.
4 (described as a white, heavyset female) “became very defensive and
argumentative.†Both Juror No. 4 and
Juror No. 1 (the foreperson) “were adamant that Mr. Trujillo should be
convicted of Attempted Murder, even though the other Jurors believed the case
for Self Defense had been proven.†Juror
No. 4 “at all relevant times was hostile and argumentative toward all the other
Jurors to the point that Juror Number 4 stated that if all the other Jurors
voted for Self Defense, the Jury would be hung, because she would not vote for
Self defense.†When Juror No. 4 “made
her position known, the other jurors attempted to engage [her] in the
deliberative process and support their position by their view of the evidence,
but were met with crazed behavior, which included pushing her chair around the
Jury Room and raising her voice in an aggressive tone.†After “approximately 20 minutes into the
process,†Jurors No. 4 and No. 1 “both stated that they knew Mr. Trujillo was
guilty from the minute they walked into the courtroom, and decided he was
guilty before the trial even started.†The other jurors “attempted to deliberate with
Juror Number 4, and were met with the following response: ‘I don’t care what you say, he’s guilty,’ â€
adding that “she lived in Santa
Clarita, CA and that ‘we
can’t have that kind of person in our neighborhood.’ â€
Juror A.P.V. stated
that, on the second day of deliberations, “the jury members began to realize
that they were not going to reach a verdict and began to negotiate a mutually
agreed upon verdict.†While doing so,
“they resumed their deliberations and when Juror Number 4 was given the
opportunity to express her views and deliberate,†she “appeared to be asleep,
or possibly pretending to be asleep.†At
some point, both Juror No. 1 and Juror No. 4 “stated that a vote of perfect
self defense would mean that [defendant] would not learn his lesson, and added
that the law as it pertained to the case was flawed.†Then, the two jurors “advised the other
members of the Jury that they should make their own rules for the case.â€
After the
verdict was negotiated, Juror No. 1 read the gun use allegation, “and informed
the entire Jury that Mr. Trujillo was obviously guilty of the special
allegation and that we had to vote True because Mr. Trujillo was found
Guilty.†Juror No. 1 recorded the “Trueâ€
vote without the jury voting on the allegation.
Juror A.P.V. stated
she “was intimidated by the hostile behavior†of Juror No. 1 and Juror No. 4
“when the subject of possibly voting Not Guilty was discussed. I did not feel free to deliberate or to speak
my mind during the deliberation process.â€
Juror A.P.V. further stated that she “was not aware that I could have
advised the Court that the verdict regarding the special allegation did not
represent my vote. I felt that I had to remain
silent because I had agreed with the overall verdict and also believed that the
negotiated verdict would result in a sentence of less than 2 years.â€
Juror
J.O.
Juror J.O.’s
affidavit stated that Juror No. 1 was selected as the foreperson. Another white female juror (the Juror) “was
very hostile and not willing to deliberate or to allow others to
deliberate.†The Juror stated, “ ‘What!,
do you think he is innocent; no one who is innocent walks around with an AR-15
rifle.’ †At some point, the foreperson
stated, “ ‘[w]hich one of you dumb asses thinks [defendant’s] going to
walk out of here free?’ †and “ ‘I decided Trujillo was guilty
before walking into this room to deliberate.’ †Juror J.O. “felt in fear for [his] life
because of the aggressive tone and demeanor taken by the Foreperson, the Juror
and Juror No. 7.†When it appeared there
would be a hung jury, the members “decided they would reach a compromised
verdict. The Foreman completed the
verdict form, but never asked whether we were all in agreement that the gun
allegation was true.†During the jury
polling in open court, “I felt like I had to say yes because I had agreed with
the verdict. I never voted or agreed to
a ‘true’ finding on the allegation.â€
Juror M.P
deliberations began, a heavy set white female (the Juror) stated, “ ‘I’m
voting Guilty. If anyone argues with me
there is going to be a hung jury, and I’m not going to talk about it.’ †Then the Juror “proceeded to sit on her hands
and did contribute [sic] to the
deliberation process.†When other jurors
began to discuss the facts and the law, the Juror stated, “ ‘I can’t
believe you guys are going to let him walk free.’ †“[W]hen other Jury members engaged the Juror
in any discussion, she appeared to focus solely on the evidence relating to the
bullets holes in Unit 316. The Juror
made it clear that the evidence of the bullet holes in unit 316 was reason
enough to find Mr. Trujillo guilty and that that evidence was enough to not
allow Mr. Trujillo to ‘walk free’.†The
Juror “then resigned herself to not exchange ideas or to discuss the
case.†“On at least three or four
occasions the other jury members attempted to engage the Juror in deliberation,
but the Juror responded by yelling at me and another Juror . . . and stating
that she was voting guilty regardless of what occurred during the
deliberations.†Another juror (Juror A.P.V.)
confided to Juror M.P. that she was physically afraid of the Juror.
Juror M.P. further
stated that, after the jury submitted a question to the court, the foreperson said
the jury “should not have asked the Judge to clarify anything because the Jury
members have the authority to interpret the law as we wished.â€
Juror M.P. believed
the district attorney “failed to prove his case, and that a verdict of complete
Self Defense was just and proper,†but when she expressed that view, “the Juror
accused [her] of ‘protecting’ Mr. Trujillo because of my position . . . as a
Case Worker for ‘at risk’ youth.†At
some point, “the Jury decided that they should reach a compromised verdict, and
after doing so, the Foreperson completed the verdict forms and I was never
asked to vote on the special allegation regarding the gun use. When polled about my verdict, I knew I could
say no, but was scared that the court was going to re-try the case with a
‘worse’ jury than what we had and I wanted to save him as much as I could with
my power as a juror on the case.â€
The prosecutor
filed a written opposition to the motion for a new trial, and in the
alternative a motion to unseal confidential juror information. The prosecutor argued that no misconduct had
been shown, but that if the court were inclined to hold a hearing to determine
whether there was juror misconduct, the court should unseal and release the
confidential juror information for all the jurors so that the nonaffiant jurors
could be interviewed.
The Trial Court’s Ruling
The court
accepted the three juror affidavits as evidence in support of defendant’s
motion for a new trial, but found the juror affidavits did not show
misconduct. We quote the court’s
findings at some length.
“The court does
not find that the stated allegations . . . present evidence of misconduct. There is no evidence presented in the affidavits
that indicates that any of the jurors failed to disclose pertinent information
regarding their suitability to serve as jurors, nor that they lied about their
information or had any preconceived bias or prejudice in favor of or against
either side.
“There is no
evidence presented that the jurors received information outside of the
courtroom proceedings by reading newspaper accounts nor having heard statements
by the bailiff or anyone else in the courtroom.
“[T]here is no
evidence the jury conducted any independent investigation or entered into any
other type of misconduct.
“There’s no
evidence contained in the affidavit that the decision was reached by the jury
by chance or by the drawing of lots; in fact, the jurors were out deliberating
for over two days.
“In addition,
they sent requests out to the court for the readback of testimony of the
witnesses and for clarification of instructions.
“From all the
evidence, the court had ample time of the deliberations, these jurors were
working hard and trying to reach a fair and just verdict based on the evidence
presented to them at trial.
“On the other
hand, the wording and sentence structure contained in the three affidavits
appears to have been written by someone other than the jurors themselves. Language in the first paragraph and the first
two sub points is identical in each.
“The language is
so identical that the sworn affidavit of [Juror J.O.] . . . , a male
juror, the first paragraph reads beginning at line 3, and I quote, ‘making this
her statement and affidavit under oath and affirmation of belief and personal
knowledge that the following matters, facts, and things set forth are true and
correct to the best of her knowledge.’ [¶] . . .
[¶]
“In reviewing
the claims made in the affidavit, the court is mindful of the requirements set
forth in Evidence Code section 1150.[
name="_ftnref2" title="">[2]] The courts have always been cautioned that when a juror in a course
of deliberation gives a reason for his or her vote, the words are simply a
verbal reflection of the juror’s mental process. It appears that the statements attributed to
the other jurors are just that, a statement of their mental process.
“In addition,
the statements made in the affidavit of [Juror A.P.V.] at paragraph 5, and I quote,
‘The other jurors believe the case for self-defense had been proven.’ This comment causes the court to have pause
because if indeed that were the true opinion of all the jurors, they would have
had no choice but to vote not guilty on all the charges.
“In her
affidavit, that juror further goes on to state at paragraph 16 that she
believed the special allegation regarding the gun would result in a sentence of
less than two years.
“Unless she has
done some research on her own, been told by defense counsel or his investigator
that that enhancement carries a term of three, four or 10 years, she would have
no way of knowing that her misconception was not true.
“In the
affidavit of Juror [M.P.], it also appears that she had an agenda, and that was
to mitigate defendant’s guilt based on the statement that the case would be
retried and quote ‘worse’ unquote jurors could hear the case.
“The conduct of
Jurors No. 1 and 4 in stating their opinions and thought process early in the
deliberation may have been rude or have hampered the initial deliberation process,
and they obviously failed to heed the jury instruction and advice not to do so.
“But in light of
the fact the jurors were out over a two-day period, that in the course of two
days they did send out questions and that the three jurors who submitted their
affidavits nor any of the other remaining jurors raised issues regarding the
conduct of Jurors No. 1 and 4 and their statements of their deliberative
process, the court is satisfied that a fair verdict was rendered and that the
verdicts reflected a fair expression of opinion on the part of the jurors.
“The court would
note having heard the evidence that the defendant may well have been convicted
of all the charges as pled; and that, if anything, he received a more favorable
verdict than would otherwise have been rendered.
“Further, from
the affidavits, the fact that is clear to the court is that these three jurors
are now considering punishment which they were specifically told not to do so.
These jurors are also showing a bias in favor of the defendant. Again, the bias can be for either the defense
or for the People.â€
After describing
the evidence and observing that the jury, from the evidence presented, “may
well and could have†found the defendant guilty of attempted, deliberate,
premeditated murder, and that it was clear the defendant did not act in
self-defense, the court continued:
“As to the three
jurors’ allegations that the finding that the defendant was personally armed
and used a gun was not their verdict or there had not been a vote on the issue
is ludicrous. It sounds to the court
that after hearing the prison time, the prison time that the Legislature has
determined for the use of the gun under these circumstances, that these jurors
do not like or disagree with that; and, therefore, want to return a verdict
based on penalty and punishment and not on the conduct of the defendant. [¶]
The evidence in this case was clear.
The gun was used, the gun was the defendant’s gun, he brought it down
from Bakersfield, he reassembled it in the mobile home park and made it ready for
use. This testimony of the victim Mr.
Villa, Stephanie Diaz and Alejandra and the defendant himself, is that he used
and shot the gun. Any finding other than
the fact that he personally used a firearm within the meaning of Penal Code
section 12022.5 as alleged would be contrary to the facts presented in the
case.â€
The court then
denied the motion for a new trial, “and the motion for the disclosure of juror
identification information is also denied based on those reasons.â€
The court
sentenced defendant to a total of 15 years 6 months in state prison (the upper
term of 66 months on count 1, plus 10 years for the firearm enhancement (§ 12022.5)). The sentence on count 5 was imposed and
stayed under section 654. The court ordered
defendant to pay an $80 court security fee (§ 1465.8) and a $240 restitution
fine (§ 1202.4), and imposed and stayed a $240 parole revocation restitution fine
(§ 1202.45). Presentence custody
credits were awarded and other orders made that are not at issue on appeal.
1.
Juror Misconduct
Defendant contends on appeal he should have a
new trial because two jurors prejudged the case, violating his federal and
state constitutional rights to trial by an impartial jury. We disagree.
a.
The applicable principles
The pertinent
principles may be summarized as follows.
First, under
section 1181, the court may grant a defendant’s application for a new trial
“[w]hen the jury has . . . been guilty of any misconduct by which a fair and
due consideration of the case has been prevented,†or “[w]hen the verdict has
been decided by lot, or by any means other than a fair expression of opinion on
the part of all the jurors . . . †(§ 1181, subds. 3 & 4.)
Second, “the
initial burden is on defendant to prove the misconduct.†(In re
Carpenter (1995) 9 Cal.4th 634, 657.)
Third, a trial
court “may hold an evidentiary hearing when jury misconduct is alleged in a new
trial motion, but the court may also, in its discretion, conclude that a
hearing is not necessary ‘to resolve material, disputed issues of fact.’
[Citation.]†(People v. Steele (2002) 27 Cal.4th 1230, 1267.)
Fourth, “ ‘ “[t]he
determination of a motion for a new trial rests so completely within the court’s
discretion that its action will not be disturbed unless a manifest and
unmistakable abuse of discretion clearly appears.†’ [Citation.]â€
(People v. Carter (2005) 36
Cal.4th 1114, 1210; cf. Jie v. Liang Tai Knitwear
Co., Ltd. (2001) 89 Cal.App.4th 654, 666-667 [on review of an order denying
a new trial based on juror misconduct, “the question of the credibility of the
witnesses is up to the trial court in the first instanceâ€; where the trial
court made no findings, “[i]mplicit in the order denying the motion for a new
trial is a finding that the declarant was not credibleâ€].)
Fifth, a
statement showing a juror has prejudged the case is a statement of bias, and “a
statement of bias is misconduct because bias is misconduct.†(Grobeson
v. City of Los Angeles (2010) 190 Cal.App.4th 778, 788, 791 (
had made up her mind during the trial was a statement of bias showing she had
prejudged the case and thus had committed misconduct]; see also
395, 419 [“In rare
circumstances a statement by a juror during deliberations may itself be an act
of misconduct, in which case evidence of that statement is admissible,†citing In
re Stankewitz (1985) 40 Cal.3d 391, 398]; People v. Lewis (2001)
26 Cal.4th 334, 389 [Evidence Code section 1150,
subdivision (a) “does not prohibit admitting a statement that reflects a juror’s
reasoning processes if the statement itself amounts to juror misconductâ€].)
Sixth, “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.†(
[“A biased adjudicator is one of the few ‘structural defects in the
constitution of the trial mechanism, which defy analysis by “harmless-errorâ€
standards’ â€]; see id. at p. 655
[“once actual bias is found, the strength of the evidence is irrelevant; the
verdict must be set asideâ€]; see also People
v. Nesler (1997) 16 Cal.4th 561, 581 [“if a juror’s partiality would have
constituted grounds for a challenge for cause during jury selection, or for
discharge during trial, but the juror’s concealment of such a state of mind is
not discovered until after trial and verdict, the juror’s actual bias
constitutes misconduct that warrants a new trial under Penal Code section 1181,
subdivision 3â€].)
This case
Defendant’s
claim on appeal is straightforward. He relies
primarily on Juror A.P.V.’s affidavit stating that two other jurors, during
deliberations, “both stated that they knew Mr. Trujillo was guilty from the
minute they walked into the courtroom, and decided he was guilty before the
trial even started.†That affidavit
stands uncontradicted, and so, defendant tells us, “there were no factual
resolutions of conflicting affidavits to be made by the trial court†and the
presumption of prejudice that arises from jury misconduct is unrebutted.
There is a fundamental
flaw in defendant’s theory. Standing
alone and if believed by the trial court, the juror statements reported by
Juror A.P.V. might well be found to be statements of bias, “show[ing] that
[they] had prejudged the case and thus had committed misconduct.†(Grobeson,
supra, 190 Cal.App.4th at p. 791; see id.
at p. 784 [affirming trial court’s grant of a new trial based on a juror’s
statement of bias; the trial court found the juror had made a statement during
the trial that she had “made up my mind alreadyâ€].) But in this case, unlike Grobeson, the trial court did not
conclude that the jurors had made the statements Juror A.P.V. attributed to
them. While, as defendant points out,
the trial court did not specifically address Juror A.P.V.’s averment that two
jurors said they had decided defendant was guilty before the trial started, the
trial court did expressly find the affidavits did not “present evidence of
misconduct.â€
More
importantly, the trial court expressly discredited other statements in Juror A.P.V.’s
affidavit on multiple grounds. The court
found all three affidavits appeared to have been written by someone other than
the jurors themselves. The court said
Juror A.P.V.’s statement that the other jurors believed self-defense had been
proven “causes the court to have pause,†because if true those jurors “would
have had no choice but to vote not guilty on all the charges,†by which we
understand the court to mean it discredited the statement that others jurors
found self-defense had been proven. The
court reasoned that Juror A.P.V. would have no reason to know she misconceived
the length of the sentence on the gun allegation unless she had received
information outside the courtroom that she was not allowed to consider, and
observed that all three jurors were “considering punishment†contrary to
instructions and “showing a bias in favor of the defendant.†The court characterized the statements in all
three juror affidavits that the finding defendant was personally armed and used
a gun “was not their verdict†as “ludicrous,†because no other verdict would
have been possible on the evidence presented.
And the court pointed out that, while the jurors sent out questions over
the two-day period of deliberations, none of the jurors raised any issue about
the conduct or statements of Juror No. 1 and Juror No. 4.
In short, it is
plain the trial court gave no credence to the affidavits in support of the new
trial motion, and that prevents this court from doing so. This case is the mirror image of
a new trial, crediting declarations that a juror had said she had made up her
mind during trial. This court said: “Since the trial court found [the declarant’s]
declaration to be credible, we must accept that decision. [Citation.]
This is not the forum for reweighing [the declarant’s] credibility.†(Grobeson,
supra, 190 Cal.App.4th at p. 796.)
The same is true here. This is
not the forum for reweighing the trial court’s finding that the juror
affidavits, including the affidavit of Juror A.P.V., were not credible. There is no basis upon which we may reverse
the trial court’s conclusion there was no showing of juror misconduct, and no
need to conduct an evidentiary hearing on the point. (People
v. Steele, supra, 27 Cal.4th at p. 1267 [court may, in its discretion,
conclude a hearing is not necessary to resolve disputed issues of fact].)
We should also
point out that, unlike the case in Grobeson
and other cases defendant cites finding misconduct based on juror bias, the
statements Juror A.P.V. and the other jurors claimed to have heard occurred
during deliberations. (See
784 [in the middle of the trial, one juror told another she had made up her
mind already]; Deward v. Clough (1966)
245 Cal.App.2d 439, 443 [before hearing argument or instruction, juror was
heard saying, “ ‘I don’t see why they don’t open up the jury room
now. We could bring in a verdict
already.’ â€]; People v. Brown (1976)
61 Cal.App.3d 476, 479 [one juror told another, in reference to the defendant
and before the prosecution had completed its case, that “[h]e is guilty†and
“[t]here is no doubt about it.â€].)
While Evidence Code section 1150 allows evidence of
statements made within or without the jury room, it is only in “rare
circumstances†that a statement by a juror during deliberations “may itself be
an act of misconduct . . . .†(
51 Cal.3d at p. 419.) A statement during deliberations that appears
to show bias could well be a juror’s misguided rhetorical attempt to persuade
other jurors to his point of view. In
short, there are good reasons to be cautious when alleged statements of bias
made during deliberations form the only basis for a claim of misconduct. (Cf. People
v. Allen & Johnson, supra, 53 Cal.4th at pp. 66, 73 [discharge of juror
was improper; juror comment during deliberations that, “ ‘[w]hen the
prosecution rested, she didn’t have a case,’ †was “subject to some
interpretation†and “did not indicate an intention to ignore the rest of the
proceedingsâ€; court had found no case “in which a juror was discharged for
prejudgment based solely on comments made during deliberationsâ€].)
In sum, the
trial judge here carefully considered the evidence of jury misconduct presented
to it, found the evidence wanting, and denied defendant’s motion for a new
trial. We see no error.
2.
The Abstract of Judgment
A modification
of the judgment and several corrections to the abstract of judgment are necessary and are undisputed by the
parties.
First, the
abstract must be corrected to show defendant was convicted on count 1 of
attempted voluntary manslaughter (§§ 664, 192, subd. (a)), rather than
attempted murder.
Second, the
abstract must be corrected to show a court security fee of $80 as imposed by
the court, rather than the $40 shown on the abstract. (See § 1465.8, subd. (a)(1) [“To
assist in funding court operations, an assessment of forty dollars ($40) shall
be imposed on every conviction for a criminal offenseâ€]; see
1181 [“because appellant was convicted on two counts, two such fees should have
been imposedâ€].) Here, the trial court
imposed the proper assessment of $80 for defendant’s two convictions, but the
abstract of judgment erroneously reflects a $40 fee.
Third, the trial
court failed to impose a $30 assessment for each of defendant’s convictions (a
total of $60) under Government Code section 70373, subdivision (a)(1). That section states: “To ensure and maintain adequate funding for
court facilities, an assessment shall be imposed on every conviction for a
criminal offense . . . . The assessment
shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or
felony . . . .†The judgment must be
modified and the abstract of judgment corrected accordingly.
DISPOSITION
The
judgment is modified by imposing two $30 criminal conviction assessments under Government
Code section 70373, subdivision (a)(1). As
modified, the judgment is affirmed. The
superior court shall prepare and transmit to the Department of Corrections and
Rehabilitation a new abstract of judgment, amended to show: (1) defendant was convicted on count 1 of
attempted voluntary manslaughter (§§ 664, 192, subd. (a)); (2) an $80 court
security fee (§ 1465.8); and (3) a $60 criminal conviction assessment (Gov.
Code, § 70373, subd. (a)(1)).
GRIMES,
J.
We
concur:
BIGELOW,
P. J.
RUBIN, J.
are to the Penal Code.
inquiry as to the validity of a verdict, any otherwise admissible evidence may
be received as to statements made, or conduct, conditions, or events occurring,
either within or without the jury room, of such a character as is likely to
have influenced the verdict improperly. No
evidence is admissible to show the effect of such statement, conduct,
condition, or event upon a juror either in influencing him to assent to or
dissent from the verdict or concerning the mental processes by which it was
determined.â€
