Valenzuela
Filed
3/25/13 P. v. Valenzuela 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NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and
Respondent,
v.
MARIO VALENZUELA,
Defendant and
Appellant.
F063436
(Super.
Ct. No. MF009465A)
APPEAL from
a judgment of the Superior Court of
Barbara Michel, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E.
LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant
Mario Valenzuela was convicted after jury trial of
allegations were found true. After the
trial court denied appellant’s new trial motion, it sentenced him as a third
strike offender to 25 years to life imprisonment plus two years.
Appellant
challenges the sufficiency of the evidence supporting the battery
conviction. He argues that the trial
court erred by refusing to instruct on the defenses of
intoxication. Appellant contends
that the trial court further erred by denying his new trial motion. None of these claims is persuasive. The judgment will be affirmed.
PROCEDURAL FACTS
On March
16, 2011, an information was filed charging appellant with battery on a
correctional officer; it was specially alleged that appellant personally
inflicted great bodily injury during the commission of this crime.
(§§ 4501.5, 12022.7, subd. (a).)
Nine prior felony convictions and seven prior prison terms were
separately alleged. (§§ 667, subds.
(a), (e)-(j), 1170.12, subds. (a)-(e), 667.5, subd. (b).)
Appellant
pled not guilty and denied the special allegations. A bifurcated jury trial commenced on May 18,
2011.
During the
morning of May 26, 2011, the trial court made the following announcement:
“Mr. Valenzuela is not
here. He is being detained in a holding
cell in the hallway as a result of him bolting from the courtroom, into the
hallway, and proceeding down the hallway a couple of departments, before he,
essentially, went to his knees and surrendered.
[¶] The jurors were outside in
the hallway, obviously; so they saw this.
And we are going to bring the jurors in, simply to advise them it will
be a few minutes before we get started.â€
The trial court instructed the
jurors to disregard the incident. It
individually questioned the jurors about their ability to follow this
instruction and to remain fair and impartial.
Appellant moved for a mistrial based on his misconduct. The court denied the mistrial motion, finding
there was not “any reason to believe that this jury would not be able to render
a fair verdict in this particular case.â€
Appellant asked the court to discharge Juror Nos. 2193178, 2233142 and 2216314. It discharged Juror No. 2193178, but declined
to discharge the other two jurors.
On May 27,
2011, the jury found appellant guilty of battery on a correctional
officer. It found the great bodily
injury allegation not true. The trial
court sustained six prior strike allegations (allegation Nos. 2, 3, 5, 8, 9,
10) and three prior prison term allegations (allegation Nos. 20, 21, 23). It found the rest of the special allegations
not true.
On August
2, 2011, appellant filed a motion for new trial based on jury misconduct.
On August 15,
2011, appellant filed a motion to dismiss his prior strikes in the interest of
justice pursuant to People v. Superior
Court (Romero) (1996) 13 Cal.4th 497.
On September 27, 2011, the new
trial motion and Romero motion were
heard and denied. Immediately
thereafter, appellant was sentenced to an indeterminate term of 25 years to
life imprisonment plus two
name="_ftnref2" title="">[2] years.
This sentence was ordered to run consecutive to the sentence he was
already serving in Riverside County Superior Court case No. 054754.
On September 28, 2011, appellant
filed a timely notice of appeal.
FACTUAL
CIRCUMSTANCES OF THE OFFENSE
On the morning of November 24,
2010, appellant was an inmate at the California Correctional Facility in
Tehachapi. He was the sole occupant of
cell No. 204 in housing unit five.
Correctional Officer Michael Cich was retrieving food trays from
prisoners through the food port in each cell.
Appellant refused to return his food tray. Cich
cell and then returned to appellant’s cell.
Appellant had covered the window on the cell door with paper. Cich asked appellant to return the food
tray. Appellant replied, “I’m not giving
you my tray. Come in and get it.â€
Correctional Sergeant Julio Hurtado
was summoned to appellant’s cell.
Appellant would not speak to him.
Hurtado opened the cell door a few inches and told appellant to step
forward. Appellant did not respond to
the directive. Hurtado closed the cell
door. Hurtado told his supervisor, “[W]e
needed to do a medical extraction, because there was no communication
whatsoever with [appellant], and I couldn’t determine his health or well-being
at that moment.â€
A six-member extraction team
assembled outside the cell. Hurtado
unlocked the food port. He attempted to communicate
with appellant but did not receive any response. Hurtado tossed a T-16 OC grenade through the
food port into the cell. It made a loud
bang and dispensed pepper spray.
Appellant did not respond; there was no movement or sound inside the
cell. Hurtado sprayed a MK-9 OC fogger,
which dispensed pepper spray, through the food port into the cell.
movement. Hurtado closed the food port
and announced on the radio that “we have a medical emergency in Housing Unit
5.â€
Correctional Officer Donald Smith
was the “shieldman†and led five members of the extraction team into the cell;
Hurtado remained outside the cell in the doorway.
covering the window on the cell door, appellant had covered the window on the
cell’s back wall and the ceiling light.
Appellant had draped a blanket across the width of the cell. Blankets and sheets had been tied to the
frame of the bunk bed, enclosing the lower bunk into a tent-like
structure. The cell was dark; the only
light came from the open cell door.
Appellant was not visible.
Smith knocked down the blanket that
was draped across the cell and “immediately braced for attack.†He slowly walked towards the back of the
cell. Smith tried to remove the sheets
and blankets from the bed frame but could not get them untied. Smith testified that he told the other
officers that he “couldn’t get the blankets down. And right about that time the blankets
dropped from the left of me. And that’s
when the inmate attacked me from the [lower] bunk.†Appellant had wrapped both of his hands with
torn white cloth that “looked like wrapping that a boxer would have.†He also had pieces of white cloth that may
have been shirts tied “around his whole face, and he had just like his eyes
showing.â€
Smith testified that appellant
rushed from the lower bunk “and headed straight towards†him. Smith moved forward. They collided. Appellant hit Smith’s shield with his upper
torso. Smith testified that “[w]hen we
first collided, the shield came back and hit my face, pushed up against my
body. And I had to use a lot of force to
push him back.†Appellant continued to
push against Smith. Smith had to use a
great deal of force to push appellant towards the back of the cell. Appellant continued to push against Smith “in
the opposite direction. And also -- I
don’t recall if it was him flailing his arms, but I was being twisted around a
lot. I was struggling to [keep] the
shield on him.†Smith testified that
appellant was “pushing against me and using his body, twisting. Just fighting against me, basically, is what
he was doing.†Smith drove appellant
back towards the bunk area. Smith’s
shield got caught on the top bunk and caused Smith to twist towards the
left. Appellant “came out from the
bottom of the shield.â€
Smith dropped the shield and faced
appellant. Smith testified that
appellant “threw … a right backhand towards me.
And I don’t recall if it struck my face or not.†Smith “threw two punches†at appellant,
grabbed his head and “pulled him down in between my legs†to control him. Appellant “was flailing his arms.†Smith pushed appellant towards the window
area. The other members of the
extraction team “came and grabbed him and put him on the ground.†Smith “got next to [appellant’s] shoulder
area. And he was kind of twisting
around, still kind of struggling. And I
just held his head down with my right hand.â€
Cich laid on top of appellant so other officers could place handcuffs on
him. Leg restraints were placed on
appellant and he was removed from the cell.
A nurse conducted a medical
evaluation of appellant. She did not
observe any injuries to appellant’s eyes.
The skin around appellant’s eyes was not orange, unlike his front abdominal
area which was orange from pepper spray exposure. Appellant had abrasions to his right
forehead, above his right eyebrow and on his right palm. There was redness on the back of his
neck. Appellant did not report any eye
injuries or vision impairment.
Smith suffered a spiral fracture on
his left hand during the cell extraction.
Surgery was performed; a metal plate and some screws were placed in the
hand. Smith was unable to work for four
months.
Appellant did not testify or
present any evidence in his defense.
DISCUSSION
Battery Conviction Is Supported By Substantial Evidence.
Appellant challenges the
sufficiency of the evidence supporting the battery conviction. He argues there is inadequate proof “that
appellant was the actual cause of the injury to Officer Smith’s hand†and “that
appellant acted willfully in causing the injury.†We are not persuaded. Appellant’s evidentiary challenge is premised
on the position that the People were required to prove that appellant willfully
injured Smith’s hand. This premise is
unsound. The crime of battery on a
correctional officer does not require proof of physical harm or intent to
inflict injury.
The crime of battery is defined as
“any willful and unlawful use of force or violence upon the person of
another.†(§ 242.) Section 4501.5 provides: “Every person confined in a state prison of
this state who commits a battery upon the person of any individual who is not
himself a person confined therein shall be guilty of a felony ….†“Section 4501.5 criminalizes a battery
committed by a prisoner on a nonprisoner.
The elements of a violation of this section are: (1) The defendant was confined in a state
prison; (2) while confined, the defendant willfully touched the victim in a
harmful or offensive manner; and (3) the victim was not confined in a state
prison.†(People v. Flores (2009) 176 Cal.App.4th 924, 930-931, fn. omitted.)
“[A]n offensive touching, although
it inflicts no bodily harm, may nonetheless constitute a battery .…†(People
v. Myers (1998) 61 Cal.App.4th 328, 335; see, e.g., People v. Hamilton (2009) 45 Cal.4th 863, 934 [battery conviction
upheld where defendant spat on a deputy]; People
v. Pinholster (1992) 1 Cal.4th 865, 961 [battery conviction upheld where
the defendant prisoner threw a cup of urine in the victim’s face].) The term “injury,†as used within the context
of the crime of battery, is not synonymous with physical harm. Our Supreme Court explained this principle in
People v. Rocha (1971) 3 Cal.3d 893:
“A battery must be contemplated, but only an ‘injury’ as
that term is used with respect to a battery need be intended. ‘It has long been established, both in tort
and criminal law, that “the least touching†may constitute battery. In other words, force against the person is enough, it need not be violent or
severe, it need not cause bodily harm or even pain, and it need not leave any
mark.’ [Citation.] [¶]
‘The “violent injury†here mentioned is not synonymous with “bodily
harm,†but includes any wrongful act committed by means of physical force
against the person of another, even although only the feelings of such person
are injured by the act.’
[Citation.]†(
899-900, fn. 12; see also People v.
Myers, supra, 61 Cal.App.4th at p. 335.)
Also, the crime of battery does not
require proof that the defendant intended to injure the victim. Battery is a general intent crime. (People
v. Lara (1996) 44 Cal.App.4th 102, 107 (Lara).) “As with all general intent crimes, ‘the
required mental state entails only an intent to do the act that causes the
harm .…’ [Citation.] Thus, the crime of battery requires that the
defendant actually intend to commit a ‘willful and unlawful use of force or
violence upon the person of another.’
[Citations.] In this context, the
term ‘willful’ means ‘simply a purpose or willingness to commit the
act .…’ [Citation.].†(Id.
at p. 107.)
We have examined the record and
conclude there is ample evidence proving that appellant committed a battery on a
correctional officer. Appellant was
confined as an inmate in the California Correctional Facility at
Tehachapi. The victim, Smith, was a
correctional officer. Appellant
instigated a cell extraction by refusing to comply with officers’
directives. Appellant prepared for a
confrontation by covering the light sources, stringing a blanket across the
cell, creating a tent-like enclosure around the lower bunk and wrapping his
face and hands in cloth. Appellant was
hiding within the enclosure when the extraction team members entered the
cell. Smith testified that appellant
rushed forward and attacked him.
Appellant collided with the shield Smith was holding. Smith testified that appellant was “pushing
against me and using his body, twisting.
Just fighting against me, basically, is what he was doing.†Appellant flailed his arms and tried to punch
Smith in the face. Appellant’s violent
attack on Smith constitutes an offensive touching. His conduct in preparing for the cell
extraction, rushing towards and fighting with Smith proves that the touching
was willful.
For the foregoing reasons, we
reject appellant’s challenge to the sufficiency of the evidence and uphold the
guilty verdict on count 1.
Was No Instructional Error.
A. The trial court properly declined to instruct on accident.
Appellant asked the court to
instruct on the defense of accident with CALCRIM No. 3404. This instruction provides, in pertinent
part:
“[The defendant is not guilty of _________________
required for that crime, but acted instead accidentally. You may not find the
defendant guilty of _________________
are convinced beyond a reasonable doubt that (he/she) acted with the required
intent.]â€
The court
refused to instruct on accident because there was no evidence to support this
defense. It reasoned:
“But in
reviewing the evidence, it’s a situation where, although the light was blocked
in the cell and there were chemicals agencies thrown into the cell, that
certainly could have affected -- along with the lights and chemical agents, it
could have affected certain individuals, Mr. Valenzuela. There is no evidence that it did. In fact, the evidence was to the contrary.
“Once
they got in, there was light coming from the outside. People could see each other in the cell. There was nothing that would indicate he had
anything in his eyes that would somehow hinder him from being able to see the
direction in which he was moving, or anything of that sort, in the course of
what took place in the cell, along with the other evidence, is what led up to
the physical contact; so I’m going to decline your request. I’m going to reject this special
instruction.â€
2. Refusing to instruct on accident was
not erroneous because the record does not contain substantial evidence
supporting this defense.
Appellant argues that instruction
on accident was required because there was substantial evidence supporting this
defense. He points to testimony that the
correctional officers wore gas masks and that Hurtado tossed a T-16 OC grenade
into the cell and then sprayed a MK-9 OC fogger pepper spray. Appellant also points out that Smith did not
know how his hand became injured. This
argument is unconvincing. As will be
explained, the trial court properly declined to instruct on accident because
there was no proof that the chemical agents introduced into the cell adversely
affected appellant or any evidence indicating that appellant’s contact with
Smith was accidental.
The trial
court must instruct on an affirmative defense, either upon request or sua
sponte, whenever the record contains substantial evidence in support of the
defense unless the defense is inconsistent with the defendant’s theory of the
case. (People v. Salas (2006) 37 Cal.4th 967, 982.) In this context, substantial evidence has
been defined as “evidence sufficient for a reasonable jury to find in favor of
the defendant .…†(
If the evidence on a defense is “minimal and insubstantial,†instruction
need not be given. (People v. Flannel (1979) 25 Cal.3d 668, 684.) The trial court’s ruling is independently
reviewed. (People v. Sisuphan (2010) 181 Cal.App.4th 800, 806.)
The defense
of accident or misfortune is based on section 26, which provides, in relevant
part: “All persons are capable of
committing crimes except those belonging to the following classes: [¶]…[¶] …
Persons who committed the act or made the omission charged through misfortune
or by accident, when it appears that there was no evil design, intention, or
culpable negligence.†(§ 26.) “The accident defense is a claim that the
defendant acted without forming the mental state necessary to make his actions
a crime.†(People v. Gonzales (1999) 74 Cal.App.4th 382, 390 (
Deciding if
the trial court erred by refusing to instruct on accident turns on whether
appellant offered evidence sufficient for a reasonable jury to find that his
contact with Smith was accidental. We
agree with respondent that the record does not contain evidence supporting this
defense. There was no evidence showing
that appellant was adversely affected by the chemical agents that were
introduced into the cell. Appellant did
not cough or otherwise indicate distress.
He did not complain of burning eyes or of any other injury. The nurse who examined appellant did not
observe any physical symptoms typically associated with exposure to pepper
spray. Appellant’s eyes were not
swollen, red or tear stained. Appellant
was not coughing or having difficulty breathing. He was not dizzy or disoriented. Appellant’s barricade and wrappings succeeded
in protecting him from the chemical agents introduced into the cell.
There also is no evidence showing
that appellant slipped or otherwise accidentally stumbled into Smith. Smith testified that appellant’s eyes were
not covered by the white shirt that he had wrapped about his face.
toward him, pushed against him and tried to hit him. Since the crime of battery does not require
proof of injury, the fact that Smith could not exactly pinpoint how the injury
occurred does not support a reasonable inference of accident. Appellant’s argument that Smith’s injury
could have arisen accidentally is premised on speculation, not reasonable
inference derived from trial evidence.
Appellant’s reliance on
supra, 74 Cal.App.4th 382 is misplaced.
Both of these cases are factually inapposite. In Lara,
the victim testified that she grabbed the back of the defendant’s shirt and he
“turned around to free himself from her grasp and hit her in the nose by
accident.†(Lara, supra, 44 Cal.App.4th at p. 106.) In Gonzales,
the victim and two of the defendant’s family members testified that the
victim’s injuries were caused when she was accidentally struck by a bathroom
door. (Gonzales, supra, 74 Cal.App.4th at pp. 385-386.) By contrast, in this case there was
undisputed testimony from Smith that appellant rushed towards him and attacked
him. Appellant collided into Smith’s
shield and then forcefully pushed against Smith. Appellant tried to punch Smith and flailed
his arms inside the small cell. There
was no testimony from appellant or anyone else that his contact with Smith was
accidental.
Accordingly, we conclude that the
trial court properly declined to instruct on accident because the record does
not contain substantial evidence supporting this defense. It necessarily follows that appellant’s federal
constitutional rights to due process and a fair trial were not infringed by the
instructional omission.
B. The trial court properly
declined to instruct on unconsciousness and involuntary intoxication.
1. Facts.
Defense counsel requested
instruction on involuntary intoxication (CALCRIM No. 3427) and unconsciousness
(CALCRIM No. 3425) based on the discharge of chemical agents into appellant’s
cell.
The prosecutor argued that the
evidence did not support either instruction.
She also argued that involuntary intoxication instruction did not apply
because it was designed to be given only when the intoxication occurred without
any fault on the part of the intoxicated person.
The trial court refused to instruct
on involuntary intoxication, reasoning:
“… I don’t think there is really enough evidence of this Court’s giving
involuntary intoxication instruction either.
There is really no evidence of the actual state of intoxication, if any,
that there was on Mr. Valenzuela.
[¶] In fact, the evidence is
essentially to the effect that he guarded from being intoxicated by virtue of
putting the materials over his mouth, towels up, things of that sort, so that
the chemicals couldn’t get to him.†The
court refused to instruct on unconsciousness because it “wouldn’t apply unless
I was considering and gave the other instruction. There was some evidence he reached some level
of intoxication.â€
2. Refusing to instruct on
involuntary intoxication and unconsciousness was proper because the record does
not contain substantial evidence supporting this defense.
As previously discussed, the trial
court must instruct on an affirmative defense, either upon request or sua
sponte, whenever the record contains substantial evidence in support of the
defense unless the defense is inconsistent with the defendant’s theory of the
case. (People v. Salas, supra, 37 Cal.4th at p. 982.) Appellant argues the record contained
substantial evidence supporting the defenses of involuntary intoxication to
unconsciousness. He relies on Hurtado’s testimony
that he introduced pepper spray into the cell “to disorient [appellant] in case
he was okay in there, because it causes irritation to the eyes.†Appellant argues it was a question for the
jury to determine “whether and to what degree the chemical agents deployed into
the cell†affected his mental state. We
disagree. The trial court correctly
determined that there was insufficient evidence to justify instruction on the
defenses of involuntary intoxication or unconsciousness.
The record does not contain any
evidence proving that the chemical agents introduced into appellant’s cell
caused intoxication or unconsciousness.
Cich testified that the effects of MK-9 OC fogger include coughing,
sneezing, chest tightness, sensations of irritation and burning. Cich did not know if the MK-9 OC fogger had
an anesthetic effect. Hurtado testified
that a T-16 OC grenade causes coughing.
Hurtado testified that the effects of a T-16 OC grenade are “physical
only†and he is not aware of “any effects other than physical effects.â€
Also, there was evidence showing
that appellant avoided the harmful effects of the chemical agents by covering
his face and barricading himself into his bunk behind blankets and sheets. Appellant did not cough or exhibit any
difficulty breathing after the chemical agents were dispensed into his
cell. A nurse examined appellant after
the cell extraction. She did not observe
any injuries on appellant other than a few abrasions.
In sum, there was no evidence in
the record indicating that the chemical agents caused intoxication or
unconsciousness and no evidence that appellant was physically or mentally
impaired by the agents. The record does
not contain substantial evidence from which a reasonable jury could have
concluded that appellant was either involuntarily intoxicated or unconscious
when the assault occurred. Therefore,
the trial court properly refused to instruct on these defenses. Appellant’s
federal constitutional rights to due process and a fair trial were not
infringed by the instructional omission.
New Trial Motion Was Properly Denied.
A. Facts.
On August 2, 2011, appellant filed
a motion for new trial based on juror misconduct. The motion was supported by declarations of
Juror Nos. 2 and 12. Both of these
jurors declared that “[a]t no time during deliberations was I convinced beyond
a reasonable doubt that [appellant] was guilty of the charged offenses and/or
enhancements.†Both jurors also averred
that they wrote questions to be given to the judge for further instruction on
the law but the foreperson refused to forward the questions and said that he
would not be asking any questions. Juror
No. 12 averred that the foreperson entered the deliberation room and announced
that appellant “is already in prison anyway, so what are the odds that he
didn’t do the battery?†They averred
that when Juror No. 12 said that appellant was not guilty, the foreperson
angrily screamed that “he would not accept a hung jury and we would be here all
day if there was no guilty verdict because he would not come back for further
deliberations. So find him guilty so we
can go home.†They both averred that the
deliberations took place while not all 12 jurors were present. Juror No. 12 averred that appellant’s status
as an inmate and his act of leaving the courtroom during trial was discussed
during deliberations. Juror No. 2
averred that the foreperson and another juror discussed “matters the court
ordered to not be discussed during deliberations.†Both jurors averred that they did not know
they could report the foreperson’s conduct to the judge. Finally, Juror No. 2 averred that she
suffered a misdemeanor petty theft conviction in 2003 but did not disclose this
conviction during voir dire due to its age.
The prosecutor opposed the new
trial motion and filed evidentiary objections to portions of the declarations.
Hearing on the new trial motion was
held on September 27, 2011. The trial
court denied the motion in a lengthy oral ruling. The court made findings on each of the averments
contained in the jurors’ declarations.
The trial court found that the
averments by Juror Nos. 2 and 12 that they never thought appellant was guilty
were inadmissible.
The trial court admitted the
jurors’ averments that the foreperson refused to forward their written
questions “is something certainly I can consider.†The trial court found there was no evidence
concerning the information that was requested by the jurors and the jurors did
not directly ask the court any questions despite having been provided with
multiple opportunities to do so.
The trial court found that the
foreperson violated an admonition of the court when he said that appellant left
the courtroom because he was guilty. The
court gave this event “very little weight†because appellant “should not be
able to profit … by his own wrongdoing .…â€
The trial court found that
averments recounting statements made by the foreperson concerning appellant’s
guilt were inadmissible because they reflected the foreperson’s subjective
reasoning process. It found that
averments concerning the interactions between the jurors and foreperson were
inadmissible. It found that averments
concerning the foreperson’s demeanor and his statement that he would not accept
a hung jury to be reflections of heated juror deliberations. Also, “[t]here is no evidence, nor should
there be, as to how it might have impacted other jurors. It’s simply as to the bias or the prejudice
of the foreperson coming into the deliberations in this particular case.â€
The trial court found the jurors’
averments that deliberations took place when less than 12 jurors were present
were admissible and “evidence[s] some misconduct.†Yet, “[t]here is no evidence as to what was
discussed or how it might evidence some bias by any of the jurors .… [T]here was nothing … that it resulted in
some bias against the defendant other than being a violation of the
admonition .…â€
The trial court determined that the
jurors did not commit misconduct by discussing appellant’s status as an inmate
because this was an element of the charged crime. Also, “there is nothing in the declaration
that references or demonstrates to the Court that the discussions as to his
status as an inmate reflected some sort of bias that somehow impacted one or
more of the jurors.â€
The trial court found that the
jurors were polled after the verdict was read.
They had an opportunity to report the foreperson’s misconduct or
“express any issues they had†with the verdict.
Finally, the trial court found that
Juror No. 2’s failure to disclose her prior petty theft conviction was
misconduct. Yet, there was nothing
indicating that the failure to disclose the conviction somehow biased the juror
in reaching a decision in the case.
Therefore, “it has very little weight in deciding this motion.â€
The trial court ruled as follows:
“So ultimately, as I
indicated, I think there is a great deal in the declarations that’s not
admissible.… [¶]…[¶] … There is still the fact that there was misconduct, there
was failure to follow admonitions, as I’ve discussed. [¶] But in this
particular case, in evaluating all these acts, as we have discussed, the
admissible acts, the admissible conduct that occurred that I can consider for
this purpose, but whether it’s singularly or all together, I do not find that
there was prejudice in this particular case. [¶] To the extent that I could say
that there was a likelihood of bias in this particular case, that it was
substantial, I simply can’t find that based on the facts of the case based on
the evidence before me, which is the admissible portion of the declarations.
[¶] I’m going to deny the motion for a new trial at this time based on those
findings.â€
B. Denial of the new trial motion was proper.
Appellant
argues that the jury misconduct was prejudicial and the trial court erred by
denying the new trial motion. This
argument is unconvincing.
1. Applicable legal standards.
“An accused has a constitutional
right to trial by an impartial jury.
[Citations.] An impartial jury is
one in which no member has been improperly influenced [citations] and every
member is ‘“capable and willing to decide the case solely on the evidence
before itâ€â€™ [citations].†(
293-294.) Juror misconduct occurs when
there is a direct violation of the juror’s oaths, duties or instruction. (Id. at
p. 294.) Misconduct also occurs when a
juror receives outside information concerning the case or shares improper
information with other jurors. (
Yet, “with narrow exceptions, evidence that the internal thought
processes of one or more jurors were biased is not admissible to impeach a
verdict.†(Ibid.) “[W]here a verdict
is attacked for juror taint, the focus is on whether there is any
[corroboration by] sight, hearing, and the other senses’ [citation], which
suggests a likelihood that one or
more members of the jury were influenced by improper bias.†(Ibid.,
fn. omitted.)
Section
1181 permits the trial court to grant a motion for new trial when the jury has
“been guilty of any misconduct by which a fair and due consideration of the
case has been prevented†(id., subd.
3) or has decided the verdict “by any means other than a fair expression of
opinion on the part of all the jurors†(id.,
subd. 4). When ruling on a new trial
motion that is based on juror misconduct, the trial court undertakes a
three-step inquiry. First, it must
decide if the affidavits supporting the motions are admissible under Evidence
Code section 1150.
title="">[8] Second, the trial court must determine
whether the facts establish misconduct.
Third, the trial court must determine if the misconduct was
prejudicial. (People v. Bryant (2011) 191 Cal.App.4th 1457, 1467.) Juror misconduct raises a rebuttable
presumption of prejudice. (
696.) This presumption is rebutted “‘if
the entire record in the particular case, including the nature of the
misconduct or other event, and the surrounding circumstances, indicates there
is no reasonable probability of prejudice, i.e., no substantial likelihood that
one or more jurors were actually biased against the defendant.’ [Citation.]â€
(Ibid.; In re Hamilton supra, 20 Cal.4th at p. 296.)
The trial
court’s ruling on a new trial motion is reviewed under the abuse of discretion
standard and will not be reversed unless a manifest and unmistakable abuse of
discretion is clearly apparent. (
at p. 1467.) When presented with the new
trial motion based on the ground of juror misconduct, “the reviewing court has
a constitutional obligation to determine independently
whether the misconduct prevented the complaining party from having a fair
trial.†(People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5.) The appellate court “accept[s] the trial
court’s credibility determinations and findings on questions of historical fact
if supported by substantial evidence.
[Citations.] Whether prejudice
arose from juror misconduct, however, is a mixed question of law and fact
subject to an appellate court’s independent determination. [Citations.]â€
(Id. at p. 582.)
2. Nondisclosure of Juror No. 2’s
misdemeanor conviction.
The trial court found that Juror
No. 2’s failure to disclose her prior petty theft conviction was misconduct but
there was no evidence demonstrating that the omission reflected juror
bias. Therefore, the court gave it “very
little weight in deciding this motion.â€
Appellant argues that Juror No. 2’s
omission “undermined the jury selection process.†His contention is unavailing. When a juror has concealed information,
prejudice is determined by examining if the omission was made to conceal a
biased state of mind. (See
294-295.) Here, there is nothing
indicating that failure to disclose the prior conviction indicated any bias
against appellant. There is no evidence
before us that Juror No. 2 intentionally failed to disclose the 10-year-old
misdemeanor conviction in an effort to conceal a bias or prejudice. The trial court correctly gave this averment
little weight.
3. Deliberations with less than 12 jurors
present.
The trial court found that
misconduct occurred when deliberations took place while less than 12 jurors
were present. The court then found that
the record did not contain any evidence concerning the substance of these
deliberations or any evidence of bias against appellant. Therefore, the misconduct was not
prejudicial.
We discern no error in the trial
court’s reasoning or result. The
declarations by Juror Nos. 2 and 12 did not contain any information about the
content of deliberations that occurred when less than 12 jurors were
present. They set forth nothing more
than the bare fact that deliberations took place when less than 12 jurors were
present. There is no evidence that the
jurors deliberated when less than 12 jurors were present because they were
biased against appellant. There is no
proof of bias against appellant. We
agree with the trial court that the misconduct was not prejudicial.
4. The jury foreperson’s conduct/statements.
Appellant repeats the averments
contained in the jurors’ declarations about the foreperson and asserts that
these averments proved prejudicial misconduct. This argument suffers from a fatal defect. As set forth ante in section III.A., the trial court made an evidentiary ruling
that many of the averments concerning the foreperson were not admissible. Also, the trial court separately ruled on
each alleged act of misconduct and explained why the misconduct was not
prejudicial. Appellant’s briefing failed
to acknowledge that the trial court found portions of the declarations to be
inadmissible.
Appellant did not challenge the
trial court’s evidentiary rulings and did not object to the trial court’s
rulings on the averments concerning the foreperson. Therefore, any potential appellate challenges
to the trial court’s ruling on these points “are deemed to have been waived or
abandoned.†(Title Guarantee & Trust Co. v. Fraternal Finance Co. (1934) 220
Cal. 362, 363.) Appellant bears the
burden of raising an issue on appeal and showing reversible error by legal
argument on the point with citation of authorities. (9 Witkin, Cal. Procedure (5th ed. 2008)
Appeal, § 701, pp. 769-770; Mansell
v. Board of Administration (1994) 30 Cal.App.4th 539, 546 [“it is not this
court’s function to serve as … backup appellate counselâ€].) We reject appellant’s perfunctory and
generalized claim that the foreperson committed prejudicial misconduct as
insufficiently undeveloped. (
153, 206; People v. Rodrigues (1994)
8 Cal.4th 1060, 1116, fn. 20.)
We have independently reviewed the
trial court’s rulings concerning averments about the jury foreperson. The trial court properly determined that the
foreperson engaged in misconduct in two respects: (1) by refusing to relay jury
questions to the court; and (2) by saying to other jurors that appellant left
the courtroom because he was guilty. We
agree with the trial court that this misconduct was not prejudicial.
The record does not support a
substantial likelihood of prejudice against appellant. The jurors did not identify the nature of the
questions that the foreman refused to relay to the court. The trial court instructed the jurors that
any questions could be submitted to the court in writing (CALCRIM No. 3550) and
Juror Nos. 2 and 12 failed to take advantage of this opportunity. Without knowing the content of the questions,
we cannot find that the foreperson’s refusal to relay the questions to the
trial court was the product of a bias against appellant.
We agree with the trial court that
appellant is not entitled to a new trial because the foreperson improperly
referenced appellant’s unauthorized flight from the courtroom as proof of
guilt. The trial court reasoned that
appellant “should not be able to profit … by his own wrongdoing.†In In
re Hamilton, supra, 20 Cal.4th 273, our Supreme Court wrote that a
defendant can never overturn a verdict by instigating an incident that influences
the jurors, as follows: “At the outset,
we question whether a convicted person can ever overturn the verdict on grounds
that persons acting in his behalf
deliberately sought to influence the jury.
Certainly no such claim could ever be valid where the
incident; a party cannot profit by his or her own wrongdoing.†(Id.
at p. 305.) Appellant cannot flee from
the courtroom and then claim reversible error because a juror mentioned his
wrongful conduct during deliberations.
This court has independently
reviewed the record as a mixed question of law and fact. We conclude the trial court did not abuse its
discretion when it determined that the irregularity that occurred in this case
was not prejudicial. The standard we
apply “is a pragmatic one, mindful of the ‘day-to-day realities of courtroom
life’ [citation] .…†(
296.) In this case, the presumption of
prejudice was sufficiently rebutted. The
entire record, including the nature of the misconduct and the surrounding
circumstances, indicates there is not a substantial likelihood that one or more
of the jurors were actually biased against appellant. (Ibid.) Therefore, we hold that the new trial motion
was properly denied.
DISPOSITION
The judgment is affirmed.
_____________________
LEVY, Acting P.J.
WE CONCUR:
_____________________
GOMES, J.
_____________________
FRANSON, J.
name="_ftn1" title="">[1] All
statutory references are to the Penal Code unless otherwise specified.
name="_ftn2" title="">[2] Special
allegations Nos. 20 and 21 arose from two prison terms that were served
concurrently.
