P. v. Voravong

Filed 12/1/08 P. v. Voravong CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian Jr., Judge.

Victor J. Morse, under appointment 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, Senior Assistant Attorney General, David A. Rhodes and Janis Shank McLean, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant Michael Voravong of three felonies, viz. possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1);^[1]count 1), carrying a firearm concealed on his person ( 12025, subd. (a)(2); count 2) and carrying a loaded firearm ( 12031, subd. (a)(1); count 3); and one misdemeanor, resisting, obstructing or delaying a peace officer ( 148, subd. (a)(1)). Appellant admitted allegations that he had suffered a strike^[2]and that he had served three separate prison terms for prior felony convictions ( 667.5, subd. (b)). The court imposed a prison term of four years, consisting of the two-year midterm on the count 1 offense, doubled pursuant to the three strikes law ( 667, subd. (e)(1), 1170.12, subd. (c)(1)). The court stayed execution of sentence on counts 2 and 3 pursuant to section 654. The court also stayed execution of sentence on the prior prison term enhancements.

On appeal, appellant contends the trial court erred in ruling, on appellants motion for a new trial, that no prejudicial juror misconduct occurred and that therefore appellant was not entitled to a new trial. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Facts

On April 13, 2007, City of Fresno Police Officers Justin Hoagland and David Fenstermaker, responding to a complaint about a loud party, arrived at an apartment complex in Fresno. The complex was located in a high ... crime area.

The officers, who were both in uniform, parked their patrol vehicle and walked into the complex, where they observed appellant and another person standing near a fence; appellant and his companion appeared to be urinating. Officer Hoagland shone his flashlight on appellant, and appellant, who appeared to be startled, quickly began pulling his pants up. At that point, Officer Hoagland said, Dont run, police[,] [s]top, police, or words to that effect, but appellant and his companion ran off into a field.

The two officers gave chase, with Officer Hoagland in the lead. Appellant, at a point approximately 10 to 15 feet from where he began running, stopped and dropped to one knee. His left hand also went to the ground. Appellant then pivoted and ran off in a different direction.

At the point appellant went down on one knee, Officer Hoagland could not tell if appellant simply stopped on his own accord or if he tripped and fell. Officer Hoagland was approximately 10 to 15 feet from appellant; it was dark; and there was no lighting in the field, aside from the light coming from the apartment complex. Officer Fenstermaker, who was behind his partner, did not see anything in appellants hands. Officer Hoagland testified that [i]t appeared ... [appellant] may have been discarding an item. The officer testified further, It has been my experience that whenever theres an action like that from a subject Im chasing on foot its pretty consistent that the subject is discarding some kind of contraband, such as a weapon or drugs. Officer Fenstermaker testified, It appeared that [appellant] was placing an item down on the ground with his right hand.

When appellant pivoted and ran off, Officer Hoagland continued to pursue him, shouting at him to stop. Appellant abruptly stopped running. Officer Hoagland yelled out to appellant, directing him to show his hands. As the officer approached appellant, he (the officer) still could not see appellants hands and, fearing that appellant had a weapon, the officer struck appellant in the face with his forearm and forced him to the ground. Appellant offered no resistance, and Officer Hoagland was able to handcuff him.

At that point, Officer Fenstermaker approached, and Office Hoagland saw appellants companion jumping over a fence in another part of the field. Officer Hoagland directed Officer Fenstermaker to go after the second person. Officer Fenstermaker subsequently apprehended that person, a juvenile.

Approximately two minutes after taking appellant into custody, Officer Hoagland walked back to the spot where appellant had dropped to one knee. There, in some tall grass, he found a loaded semi-automatic handgun. Officer Hoagland testified there was nothing on [the gun]. Although the grass was slightly moist with condensation, the gun was dry and had no rust that appeared to be from any kind of moisture, and no grime or grass on it. Officer Fenstermaker, however, testified the gun had rust on it and looked dirty and unoiled.

After he found the gun, Officer Hoagland asked appellant if he had any weapons or dropped any weapons in the field. Although the officer did not use the word handgun, appellant responded that he didnt have a handgun.

At the time he was taken into custody, appellant had a gray bandanna hanging out of the back pocket of his pants and he did not have gloves.

Valerie Maffei testified to the following. She is an identification technician employed by the Fresno Police Department, and her duties include processing evidence for latent fingerprints, and doing fingerprint comparisons. In examining the gun found in the field she found no full fingerprints, partial fingerprints or smudges. The gun was clean. The barrel of the gun was made of a particular metal that is not really conducive to leaving fingerprints. It is possible for a person to leave a fingerprint on that surface, but not probable. The handle of the gun was made of metal and plastic. There is a 50/50 chance of obtaining a fingerprint from that surface.

Procedural Background

Prior to the presentation of any evidence, and outside the presence of the jury, the defense moved, pursuant to Evidence Code section 352, to exclude evidence that the area where appellant was taken into custody was a hot spot for ... members of a particular criminal street gang, appellants clothing was representative of a criminal street gang and appellant had previous involvement in a gang, on the grounds the evidence was inflammatory and ... has no probative value.^[3] The court stated it was inclined to exclude the evidence on undue prejudice grounds but would defer ruling until the evidence was presented, because the court could not intelligently rule on the matter unless it did so at a time when it was able to consider the evidence in [the] context of the state of the evidence at the time an objection is made. The challenged evidence was not introduced at trial.

Before the presentation of any evidence, the court instructed the jury: You must decide what the facts are in this case. You must use only evidence that is presented in the courtroom or during a jury view, if any.

The day after the trial ended, the court received a letter from a juror, in which the juror stated, I feel the evidence was too circumstantial to say for sure [appellant] was guilty, and that he (the juror) caved in .... The letter made no mention of any jurors saying anything relating to criminal street gangs.

The defense filed a petition seeking the disclosure of juror-identifying information for the purpose of determining whether juror misconduct had occurred. The court denied the petition on various grounds, including that the letter does not reveal any improper comments by the other jurors or any external factors that affected this jurors decision.

Thereafter, the defense contacted and obtained declarations from three jurors, including the juror who wrote the letter to the court. The defense presented to the court an application to file, under seal, a motion for a new trial, along with the three declarations. At subsequent hearings, both the defense and prosecution, in response to a question from the court, indicated they did not wish to seek additional juror contact information. The court granted the defense application.

On November 15, 2007, the defense filed a notice of motion for new trial, along with the supporting juror declarations. The juror who wrote the letter (Juror 1) stated in his^[4]declaration that one of the other jurors, whom he identified only by gender and ethnicity, told the other jury members that he was familiar with the area of town where [appellant] was arrested; a gray rag is a gang-related item; and the gray rag is typically used to hide or wipe off fingerprints when a gun [is] used. Another juror (Juror 2) stated in his or her declaration that another juror, identified in the same manner as in Juror 1s declaration, said he was familiar with that area where [appellant] was arrested and mentioned that gray is a gang color and the bandanna is typically used to hide or wipe fingerprints off a gun. The third juror (Juror 3) stated in his or her declaration, the following: Someone said [appellant] was probably a gang member because he had a rag, and one of the jurors, identified in the same manner as in the other two declarations, told the other members of the jury that he has lived in that area where the incident happened; the area is a known gang area; and the rag is typically used to hide or wipe fingerprints off a gun.

The trial court denied the motion for a new trial. The court ruled that the three juror declarations were admissible in the proceeding to determine whether a new trial should be granted, and that the declarations established that one juror made remarks to other jurors relating to gangs. However, the court found these remarks were not evidence, but merely general conversation; did not constitute misconduct; and even if this discussion rose to the level of misconduct, its clearly not prejudicial.

DISCUSSION

Appellant contends the three juror declarations established that one juror told the other jurors during deliberations that appellant was arrested in a gang area, the gray bandanna that appellant had in his possession was a gang-related item and gang members typically use such bandannas to wipe fingerprints off of guns. Appellant further contends that conveying this information to other jurors constituted prejudicial juror misconduct, and therefore the court erred in denying appellants motion for a new trial.

A defendant accused of a crime has a constitutional right to a trial by unbiased, impartial jurors. [Citations.] A defendant is entitled to be tried by 12, not 11, impartial and unprejudiced jurors. Because a defendant charged with a crime has a right to the unanimous verdict of 12 impartial jurors [citation], it is settled that a conviction cannot stand if even a single juror has been improperly influenced. [Citations.] (People v. Nesler (1997) 16 Cal.4th 561, 578.)

Presentation to or reception by a jury of new evidence from sources outside the trial evidence constitutes misconduct. (McDonald v. Southern Pacific Transportation Co. (1999) 71 Cal.App.4th 256, 263.) Such juror misconduct leads to a presumption that the defendant was prejudiced thereby and may establish juror bias. [Citations.] ... In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the evidence developed against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendants right of confrontation, of cross-examination, and of counsel. [Citation.] As the United States Supreme Court has explained: Due process means a jury capable and willing to decide the case solely on the evidence before it .... (People v. Nesler, supra, 16 Cal.4th at p. 578.)

If we conclude there was misconduct, we then consider whether the misconduct was prejudicial. This standard is well established. [W]hen misconduct involves the receipt of information from extraneous sources, the effect of such receipt is judged by a review of the entire record, and may be found to be nonprejudicial. The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. (People v. Danks (2004) 32 Cal.4th 269, 303.)

First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citation.] Under this standard, a finding of inherently likely bias is required when, but only when, the extraneous information was so prejudicial in context that its erroneous introduction in the trial itself would have warranted reversal of the judgment. Application of this inherent prejudice test obviously depends upon a review of the trial record to determine the prejudicial effect of the extraneous information. (People v. Danks, supra, 32 Cal.4th at p. 303.)

Second, under what is sometimes referred to as the circumstantial test, (In reCarpenter (1995) 9 Cal.4th 634, 654), even if the extraneous information was not so prejudicial, in and of itself, as to cause inherent bias under the first test, the nature of the misconduct and the totality of the circumstances surrounding the misconduct must still be examined to determine objectively whether a substantial likelihood of actual bias nonetheless arose (People v. Danks, supra, 32 Cal.4th at p. 303). Actual bias occurs where a juror is unable to put aside [his or] her impressions or opinions based upon the extrajudicial information [he or] she received and to render a verdict based solely upon the evidence received at trial. (People v. Nesler, supra, 16 Cal.4th at p. 583.) Under this second test, The presumption of prejudice may be rebutted, inter alia, by a reviewing courts determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual bias. (People v. Danks, supra, 32 Cal.4th at p. 303.)

In applying the circumstantial test to an extraneous-information case, the entire record logically bearing on a circumstantial finding of likely bias includes the nature of the jurors conduct, the circumstances under which the information was obtained, the instructions the jury received, the nature of the evidence and issues at trial, and the strength of the evidence against the defendant. For example, the stronger the evidence, the less likely it is that the extraneous information itself influenced the verdict. (In re Carpenter, supra, 9 Cal.4th at p. 654.)

The judgment must be set aside if the court finds prejudice under either test. [Citation.] Whether prejudice arose from juror misconduct ... is a mixed question of law and fact subject to an appellate courts independent determination. [Citation.] However, [w]e accept the trial courts credibility determinations and findings on questions of historical fact if supported by substantial evidence. (People v. Danks, supra, 32 Cal.4th at p. 303-304)

Our Supreme Court has emphasize[d] that before a unanimous verdict is set aside, the likelihood of bias under either test must be substantial. ... [T]he criminal justice system must not be rendered impotent in quest of an ever-elusive perfection. The jury system is fundamentally human, which is both a strength and a weakness. [Citation.] Jurors are not automatons. They areimbued with human frailties as well as virtues. If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias. To demand theoretical perfection from every juror during the course of a trial is unrealistic. (In re Carpenter, supra, 9 Cal.4th at pp. 654-655.)

We first address the question of whether juror misconduct occurred. We accept the trial courts factual finding that a juror made the remarks reported in the declarations. However, we disagree with the courts conclusion that these remarks did not constitute misconduct. There was no evidence introduced at trial that appellant was in any way connected with a criminal street gang. By stating during deliberations that appellant was apprehended in a gang area, that he had a gang-related bandanna in his possession and that such items are used by gang members to wipe fingerprints off of guns, one juror injected into the case information not adduced as evidence at trial that was damaging to appellant.

The remaining question is whether the misconduct was prejudicial. On this question, appellant first argues the gang-related information disclosed to the jury during deliberations was inherently prejudicial. We disagree.

We agree with appellant that the obvious inference of that information was that appellant was affiliated with a gang and that such information can have a highly inflammatory impact. (People v. Cox (1991) 53 Cal.3d 618, 660.) On the other hand, the evidence against appellant was strong. As indicated above, there was evidence of the following: although neither officer saw appellant place the handgun on the ground, one officer testified that when appellant dropped to one knee it appeared appellant was discarding an item and the other officer testified appellants action were consistent with discarding contraband; the gun was found approximately two minutes after, and in the same area where, it appeared appellant discarded something, and although the grass in the area was moist, the gun was dry; and in response to a question as to whether he had any weapons, appellant told Officer Hoagland he did not have a handgun, even though the officer did not use the word handgun in posing the question. On this record, given the compelling evidence of appellants guilt, it cannot be said that had the gang-related information been erroneously admitted, it is reasonably probable appellant would not have been convicted absent the erroneous admission of the evidence. Therefore, the erroneous admission into evidence of that information would not have necessitated reversal. (People v. Page (2008) 44 Cal.4th 1, 41-42 [evidentiary error not prejudicial unless it is reasonably probable defendant would have achieved a more favorable result absent the error].) And, as indicated above, in an extraneous-information instance of juror misconduct, such information is deemed inherently likely to cause bias only if its introduction into evidence would have warranted reversal of the judgment. (People v. Danks, supra, 32 Cal.4th at p. 303.) Accordingly, we conclude the juror misconduct in the instant case was not inherently prejudicial.

Appellant also argues that reversal is required under the circumstantial test. He asserts that there is a substantial likelihood that one or more of the jurors who heard the improper remarks were actually biased because [those remarks] concerned a controversial issue at appellants trial -- the absence of appellants fingerprints on the gun, and improperly undermined a crucial aspect of the defense. Again, we disagree. In applying the circumstantial test we consider, inter alia, the strength of the case against appellant, and as demonstrated above, the record contains compelling evidence of appellants guilt. Moreover, appellants suggestion that the extraneous gang-related information was particularly damning, and therefore substantially likely to have influenced the jury, is undercut by the presence of two other factors, which also militate in favor of conviction, that the jury could properly consider in determining why there were no fingerprints on the gun: (1) the commonsense notion that not only gang members would think to wipe fingerprints off of a gun, and (2) the evidence that given the plastic and metal surfaces of the gun, even if the gun had not been wiped clean, the likelihood of being able to obtain fingerprints was no better than fifty percent. Although it is possible, on this record, that one or more members of the jury were unable to ignore the extrajudicial gang information and decide the case based solely on the evidence, in our view it is not substantially likely.

Finally, appellant argues that even if the other jurors were unaffected by the extraneous information, the fact that the juror who disclosed the information took the trouble to do so establishes that that juror was actually biased. On this point too, we disagree.

Appellant bases this contention chiefly on People v. Nesler, supra, 16 Cal.4th 561. The defendant in that case was charged with killing the alleged molester of her young son. (Id. at p. 565.) The impact of possible methamphetamine use on the defendants mental status was an issue at trial. The misconduct occurred when one juror revealed to the other jurors damaging information that she overheard in a bar regarding the defendants sale and use of methamphetamine. (Id. at pp. 570, 579.) The evidence presented in the trial court showed that the juror referred repeatedly to the damaging information and used it to persuade other jurors with whom she disagreed. (Id. at p. 583.) The Supreme Court thus concluded:

In our view, [the jurors] repeated references to and use of the outside information during deliberations establish a substantial likelihood that her extraneous knowledge concerning defendant caused her to prejudge issues that arose during deliberations and to render a verdict that was not based solely upon the evidence presented in court. As defendant points out, if [the juror] had not been influenced by what she had learned, she would not have used the information to attempt to convince other jurors that defendant truly was a bad mother and more involved with drugs than the evidence showed. (People v. Nesler, supra, 16 Cal.4th at p. 583, italics added.)

Here, on the other hand, there was no evidence that the juror who disclosed the gang-related information made more than one reference to that information or used it to convince other jurors of appellants guilt. We recognize that the Nesler court stated, A jurors disclosure of extraneous information to other jurors tends to demonstrate that the juror intended the forbidden information to influence the verdict and strengthens the likelihood of bias. (People v. Nesler, supra, 16 Cal.4th at p. 587.) However, that circumstance alone is not dispositive on the issue of actual bias. If it were, the interjection of outside information into deliberations would always require invalidation of the jurys verdict. Obviously this cannot be, and is not, the law. (People v. Nesler, supra, 16 Cal.4th at p. 598 (dis. opn. of Baxter, J.).)

We reiterate that the evidence against appellant was compelling. When we apply the circumstantial test, we conclude that notwithstanding what, insofar as the record reveals, was a single instance of a juror interjecting extraneous information into deliberations, the record does not establish a substantial likelihood of actual bias on the part of that juror.

DISPOSITION

The judgment is affirmed.

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^* Before Wiseman, Acting P.J., Cornell, J., and Hill, J.

^[1] Except as otherwise indicated, all statutory references are to the Penal Code.

^[2] We use the term strike as a synonym for prior felony conviction within the meaning of the three strikes law ( 667, subds. (b)-(i), 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.

^[3]Evidence Code section 352 provides, in relevant part: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will ... create substantial danger of undue prejudice ....

^[4]In a subsequent hearing, the trial court referred to the jurors letter as his letter.