Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; Application for Writ of Habeas Corpus, Superior Ct. Nos. SC65347A & HC008343A
Mark A. Arnold, David L. Kelly and Arthur Titus, Deputy Public Defenders, for Petitioner.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Clifford E. Zall, Deputy Attorneys General, for Respondent.
HILL, J.
A jury convicted petitioner Mark Vincent Tedeschi of second degree murder for the shooting death of his ex-father-in-law. Five years later, Tedeschi petitioned for a writ of habeas corpus in the trial court seeking a new trial based on six alleged instances of juror misconduct during deliberations. Following an extensive evidentiary hearing, the trial court found three instances of juror misconduct occurred during deliberations but determined the presumption of prejudice arising from the misconduct had been rebutted. Tedeschi sought review of the trial court’s ruling by filing the instant petition for writ of habeas corpus. We originally denied the petition. The Supreme Court subsequently granted review, and transferred the matter to us with directions to vacate our summary denial and to issue an order showing cause why Tedeschi was not entitled to relief based on two of the three instances of juror misconduct found by the trial court, namely, “(1) considering an extrajudicial definition of ‘malice,’ and (2) discussing whether [Tedeschi] had been previously tried, and whether retrial was barred if the jury failed to reach a verdict .…” Tedeschi contends the trial court erred in concluding that the presumption of prejudice arising from these instances of misconduct had been rebutted, and that he is entitled to a new trial. We disagree, and deny his petition.
We substantially repeat the procedural and factual summaries of our prior opinion affirming the judgment of conviction. (People v. Tedeschi (Aug. 8, 2001, F033068) [nonpub. opn.].) On August 29, 2005, we filed an order taking judicial notice of the full record on appeal in F033068.
On January 4, 1996, the Kern County District Attorney charged Tedeschi with first degree murder. (Pen. Code, § 187, subd. (a).) It was further alleged that Tedeschi personally used a firearm in the commission of the murder (Pen. Code, § 12022.5, subd. (a)) and killed the victim while lying in wait (Pen. Code, § 190.2, subd. (a)(15)).
On January 16, 1996, Tedeschi pled not guilty and denied the special allegations. Trial began on February 4, 1999, and, on February 26, 1999, the jury found Tedeschi not guilty of first degree murder but guilty of the lesser included offense of second degree murder. The jury found the firearm allegation true and the trial court found the lying-in-wait allegation not true.
On April 9, 1999, the trial court sentenced Tedeschi to prison for a total of 25 years to life: 15 years to life for second degree murder, plus 10 years for the firearm enhancement.
FACTUAL SUMMARY
Background
Tedeschi and Shelley were married in 1984. Eventually the marriage deteriorated and Shelley began a cycle, repeating perhaps 10 times, of moving out of the marital house with the couple’s daughter, Tiffani, living with her parents, then reconciling and moving back with Tedeschi. In the summer of 1994, Shelley and Tiffani (nine years old by this time) left again.
In July of that summer, Shelley went to dinner with Tedeschi, her sister, Molly, and Molly’s boyfriend, Frank. The dinner, which was an attempt at reconciliation, went well, but once Shelley and Tedeschi were alone, Tedeschi asked Shelley in an accusatory tone whether the dinner had been a ploy for her to meet Frank.
On September 26, 1994, Shelley went to Tedeschi’s house to discuss their relationship. During their conversation, Tedeschi accused Shelley of seeing Frank. In a threatening tone, he said, “‘I know you have been seeing Frank, I want you to take me to his house. Where does he live?’” Shelley could not convince Tedeschi she was not seeing Frank, which was the truth. Their argument moved outside and Tedeschi held Shelley to the ground and continued to yell about Frank. This was witnessed by two of Tedeschi’s neighbors, Mr. Aragon and Mr. Heredia, who approached to help.
After this incident, Tedeschi and Shelley made no further attempts at reconciliation and Tedeschi commenced divorce proceedings. During this period, Tedeschi continued to angrily ask Shelley about Frank. Shelley would tell him, “‘You are crazy, I am not seeing Frank.’”
In May 1995, Tedeschi angrily asked his friend, Larry, how he had gotten Shelley’s phone number and why he was talking to her behind his back. Larry had in fact done neither of these things.
Tedeschi also repeatedly asked Tiffani about whether Shelley was dating.
In September 1995, Shelley bought a home and moved in with Tiffani and Molly. The same month, during a discussion regarding child custody payments, Shelley told Tedeschi she would turn him over to the district attorney for his nonpayment. Tedeschi angrily told her, “[I]f you do, I’ll kill you.” He added that no one else was there to hear his statement.
In October 1995, when Tedeschi was returning Tiffani to Shelley’s house, he stood outside his car on the street and yelled to Shelley, who was on the porch, “your days are numbered bitch.”
The Day of the Shooting
On Friday, November 10, 1995, Shelley’s father, Leisten, took Tiffani (now 10 years old) to Tedeschi’s house for her weekend visit, but Tedeschi was not home. Leisten and Tiffani then went to Leisten’s house and watched television. Later, Tedeschi called Leisten’s house and told Tiffani, “‘Have your mom bring you and make sure she comes. I don’t care who comes with her, just make sure your mom brings you.’” His voice sounded a little angry. Both Shelley and Leisten took Tiffani to Tedeschi’s house, arriving around 7:15 p.m. Tiffani got out and went to the front door. Tedeschi asked her through the door who was in the car and told her to go around to the back gate. She answered that her mom and grandpa were in the car, then she went around to the back. When Tiffani entered the house, she saw a gun leaning up against the couch. She had not seen this on previous visits. She described the gun as big with a knife on the end. Tiffani thought Tedeschi was acting “kind of jumpy.”
After dropping Tiffani off, Shelley took her father to his house, then arrived back home at about 7:30 p.m. On her arrival, her friend (now husband) Lynn Gudmundson told her Tedeschi had called while she was gone. Tedeschi had asked Gudmundson who he was there to see, Shelley or Molly. Gudmundson lied and told him he was visiting Molly. Within a few minutes, Tedeschi called again. He told Shelley, “you must have said your prayers tonight.” Shelley asked him what he meant, and he told her to figure it out. Again, he questioned her about whom she was dating and whether it was Larry. She told him it was no longer his business and Tedeschi became angry. Shelley hung up on him. Shortly thereafter, the phone rang again, but Shelley let the answering machine answer it. This call was from Tiffani saying either “Mom, come pick me up, or dad wants you to come and pick me up.” In a few minutes, the phone rang again, and Tiffani left another message on the machine: “[M]om, dad’s bringing me home.” Shelley heard the messages and was afraid; she did not want to be there when Tedeschi came to her house, so she and Gudmundson went to Leisten’s house just around the corner. They let themselves in because Leisten was unexpectedly gone.
Meanwhile, shortly after Tiffani arrived at Tedeschi’s house, she observed Tedeschi yelling at Shelley on the phone. A couple of minutes after the call, Tedeschi told Tiffani to call Shelley and have her come pick Tiffani up. Tiffani left a message to this effect on Shelley’s answering machine. Immediately, Tedeschi told Tiffani to call again and leave a message that he would bring Tiffani back home. But then Tedeschi had Tiffani call her grandfather, Leisten, and tell him to come pick her up. On the phone, Leisten asked Tiffani, “‘What’s wrong?’” and she answered, “‘I don’t know, just come pick me up.’”
After this call, Tedeschi and Tiffani drove to a liquor store about a block away. Tedeschi bought a cigar, a bottle of tequila, a lime, and some candy for Tiffani. He said, “‘I am going to have a celebration tonight.’” He also paid his tab at the store, letting Tiffani sign the bill. Back at the house, he drank a shot of tequila, gave Tiffani a hug, and told her he was sorry. This was the only weekend visitation that had ever ended early; Tiffani normally stayed until Sunday at 6:00 p.m.
Tiffani heard Leisten’s car’s horn. She went to get her overnight bag, walking through the living room and hallway toward her bedroom, but Tedeschi stopped her. He was in the hallway with two guns, both about three feet long, which were leaning against the wall. Tedeschi was handling the gun with the bayonet. Tedeschi told her to go tell Leisten to come into the house, and she complied.
Leisten, who had been waiting in the car, followed Tiffani into the house. As Leisten stood a few feet inside the door, Tedeschi walked over to the door and slammed it behind Leisten. Tedeschi said to Leisten twice, “You and your daughter.” Tedeschi started laughing. Leisten said, “‘I don’t know what you are talking about.’” Tedeschi then retrieved his gun, said, “Well,” then, from about 10 feet away, shot Leisten in the buttock. Leisten, who was still standing by the door, grabbed his leg, and slumped onto the floor against the couch.
After witnessing the entire incident, Tiffani grabbed the cordless phone and ran out of the house. She ran toward the house next door; the neighbors, the Aragons, took her into their home. Mrs. Aragon called 911 and relayed information between the operator and Tiffani. The police arrived just after 8:00 p.m.
The SWAT team forcibly entered the house around midnight and found Leisten, with two gunshot wounds, dead at the front door. Leisten’s body showed the infliction of blunt force injuries, including a fracture to the nose and damage to the left eyelid and eye. The pathologist determined Leisten had bled to death.
The SWAT team found Tedeschi lying in the hallway with a towel over his face (due to the teargas) and a rifle on top of him with the barrel under his chin. He at first refused to respond to the officers’ demands; then, after letting go of the rifle, he yelled at the officers to shoot him. A struggle ensued and all six officers finally subdued Tedeschi after 30 to 40 seconds.
A search of Tedeschi’s house produced notes written by Tedeschi stating, “Tiffani, I’m sorry, please pray for your daddy, Mark[,]” “You wouldn’t talk to me, this is the price you pay, Shelley[,]” and “‘I got tired of the pain, Lord have mercy on my soul.’”
Defense Case
Tedeschi testified on his own behalf. He stated he was planning to take Tiffani to Magic Mountain that weekend to celebrate her birthday. Unfortunately, the plans fell through when he was unable to get discount tickets. Thus, he wanted to go get her surprise gift and cake for the next morning. For this reason, he wanted Tiffani to leave his house. After Tiffani spoke with Shelley on the phone, Tiffani told Tedeschi, “‘They’re going to come pick me up.’” Tedeschi and Tiffani then made a brief trip to the liquor store. Back home, Tedeschi was on the phone when Tiffani announced, “They are here.” Tedeschi told her to tell them it would be a minute. He walked into the living room where he was surprised to see Leisten standing in the middle of the room.
Tedeschi was not expecting Leisten to enter his home. Tedeschi asked him, “‘What are you doing here[?]’” Leisten angrily answered, “‘What the hell is going on here[?]’” and “‘[W]hat kind of games … are you playing now[?]’” Tedeschi responded, “‘I am not playing any games. If anybody is playing any games, it is you and your daughter[.]’” Then Leisten accused Tedeschi of owing Shelley money, after which Tedeschi accused Leisten of owing him money. Tedeschi told Leisten he should pay Shelley what he owed Tedeschi and they would be even. Tedeschi testified that the conversation “was getting very aggressive, it was getting hostile and [he] was afraid of Bob Leisten, he is a lot larger than [Tedeschi], he is a big man.” Leisten called him a John Lennon and Tedeschi called Leisten an alcoholic.
Leisten then struck Tedeschi in the face, causing him injury near his eye, and Tedeschi struck him back. Leisten grabbed him and Tedeschi kept striking him until a blow from Leisten knocked him to the ground. At that point, Tedeschi, who was very frightened, scrambled down the hall into the office, grabbed his most intimidating rifle (an A.K.S. Polytechnician with a bayonet) out of his unlocked gun safe, took the gun safety off, and returned to the living room where Leisten was still standing. He told Leisten to get out. Leisten took a step toward him and tried to grab the rifle. Tedeschi “fanned the trigger several times until Bob Leisten was no longer a threat to [him], [and] wasn’t making any more advancement.” Tedeschi testified he fired the weapon because he thought Leisten “was going to grab the gun from [him], he was going to come after [him].” Leisten slumped down against the couch. When Tedeschi realized how upset Tiffani had become, he said to Leisten, “‘Look what you caused to happen, you son of a bitch, why did you come in the house?’” Leisten answered, “‘I don’t know.’”
Rebuttal
Deputy Sheriff Joseph Giuffre, a 17-year veteran of the sheriff’s department, was part of the SWAT team called to Tedeschi’s house that night. Giuffre was the officer who sprayed Tedeschi with pepper spray. Giuffre testified he was three to four feet from Tedeschi when he sprayed him in the face. Giuffre stated he saw Tedeschi’s face and he did not recall his having any facial injuries.
On cross-examination, Giuffre denied striking Tedeschi on his head, but explained there was a struggle that lasted for some time as three officers tried to subdue Tedeschi and he resisted. However, Giuffre did not see any of these officers strike Tedeschi.
JUROR MISCONDUCT
Background
On March 10, 2004, Tedeschi filed a petition for writ of habeas corpus in the trial court seeking a new trial based on six alleged instances of juror misconduct during deliberations, evidence of which had recently surfaced.
On April 25 and April 26, 2005, the trial court conducted an evidentiary hearing during which all 12 jurors testified. On July 7, 2005, the trial court issued a written ruling denying Tedeschi’s petition for writ of habeas corpus. In its ruling, the court found three instances of juror misconduct had in fact occurred during deliberations but determined the presumption of prejudice arising from the misconduct had been rebutted. The three instances of juror misconduct found by the trial court were: (1) discussing that there had been a previous trial, even though this was not true, and discussing that Tedeschi might go free if a verdict was not reached; (2) discussing penalty or punishment; and (3) bringing into the jury room a dictionary definition of “malice.”
On August 9, 2005, Tedeschi filed the instant petition for writ of habeas corpus in this court, seeking review of the trial court’s ruling. Tedeschi limited the scope of his petition to the three instances of juror misconduct found by the trial court and argued the court erroneously concluded the presumption of prejudice resulting from the misconduct had been rebutted. This court denied the petition for writ of habeas corpus on December 22, 2006, and Tedeschi petitioned the California Supreme Court for review.
On February 28, 2007, the Supreme Court granted Tedeschi’s petition for review, and issued an order directing this court to vacate its summary denial of Tedeschi’s petition for writ of habeas corpus, and issue an order to show cause before this court “why [Tedeschi] is not entitled to relief based on juror misconduct for (1) considering an extrajudicial definition of ‘malice,’ and (2) discussing whether [Tedeschi] had been previously tried, and whether retrial was barred if the jury failed to reach a verdict .…”
On March 8, 2007, we issued an order to show cause pursuant to the Supreme Court’s order. The parties subsequently stipulated to submit the matter without further briefing and waived oral argument. On June 5, 2007, the cause was ordered submitted for decision.
On August 17, 2007, we vacated our previous order submitting the cause for purposes of further consideration and oral argument on the ground the parties had not provided adequate briefing on the following question:
Our Supreme Court has held that “when [juror] 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 non-prejudicial. The verdict will be set aside only if there appears a substantial likelihood of juror bias.” (In re Carpenter (1995) 9 Cal.4th 634, 653.) Juror bias may appear if either (1) the extraneous material itself was “‘inherently prejudicial’” or (2) the nature of the misconduct and the surrounding circumstances indicated it is substantially likely that a juror was actually biased. (Ibid.) As to the second test,“the ‘entire record’ logically bearing on a circumstantial finding of likely bias includes the nature of the juror's 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.” (Id. at p. 654.) Assuming In re Carpenter sets forth the standards applicable to this case, what specific portions of the trial record support a determination under those standards that there is/is not a substantial likelihood of juror bias arising from the misconduct in the receipt of extraneous material?
In November 2007, the parties filed supplemental briefing addressing the above question. The cause was orally argued and submitted on November 26, 2007.
Considering an Extrajudicial Definition of Malice
The trial record and evidence presented in support of Tedeschi’s habeas petition show that the jury deliberated over a two-day period before reaching its verdict. On February 25, 1999, the jury retired to deliberate at 10:20 a.m. and adjourned at 4:30 p.m., taking about an hour to break for lunch.
On February 26, 1999, the jury retired to deliberate further at 9:01 a.m. At 12:25 p.m., the jury returned to the courtroom and the trial court responded to a note from the jury foreperson asking the court to explain “malice.” The court told the jurors it could not tell them anything more about “malice” except what was in the instructions. The foreperson then asked whether the court could give the jury a law dictionary. The court said no and reiterated that the jury was required “to follow the instructions, the definition of malice.” The foreperson then stated, “I guess we weren’t satisfied with the definition as stated in the papers you gave us.” The court responded, “But that is the definition.” The foreperson replied, “That is the definition?” The court repeated, “That is the definition.”
Following this discussion, the jury broke for lunch at 12:30 p.m. At 1:30 p.m., the jury retired to deliberate further. After taking a 15 minute break at 2:58 p.m., the jury returned its verdict at 4:03 p.m.
During the evidentiary hearing on Tedeschi’s habeas petition in the trial court, evidence was presented that on the second day of jury deliberations in Tedeschi’s trial, one of the jurors told the jury he had gone to the library over the lunch hour and obtained a dictionary definition of “malice,” and then shared this definition with the jury. The juror who brought the dictionary definition of “malice” into the jury room never admitted to the conduct. Although other jurors’ descriptions of the juror pointed to Juror No. 044400 as being the likely culprit, Juror No. 044400 denied that it was him and then testified he could not remember doing it.
None of the jurors who remembered the incident was able to recall any specific details of the dictionary definition of “malice” the juror shared with the jury. Juror No. 010117 testified that she “vaguely” remembered the incident and did not recall any specifics of the dictionary definition. However, she believed the dictionary definition was similar to the instructions that had already been given. Juror No. 010117 could not recall how many jurors participated in the discussion of the dictionary definition or how long it lasted but testified it “seemed to be fairly short to [her].”
Similarly, Juror No. 016948, the jury’s foreperson, could not recall any specifics of the dictionary definition of “malice” brought into the jury room. The foreperson recalled the incident involving the dictionary definition of “malice” in relation to the jury’s request that the court explain the term. Thus, on direct examination by the prosecutor, Juror No. 016948 testified:
“A. Well, we asked the judge for the literal definition of the word ‘malice’ and he refused. And one of the jury members took it upon themselves, without my knowledge, to go to the library and look up the word in the dictionary, and this was, I’m sure, right after it happened or, you know, the same day. And he came back and he didn’t just pop right out and say, hey, I’ve got the definition. It seems like we may have deliberated, talked a little bit and then he said, ‘I have the definition of malice.’ So he shared it with us.
“Q. Was that everybody who was participating in that conversation?
“A. The way I recall, everyone was there, and he was wide open with it and so everyone would have known.
“Q. And how long did he discuss his understanding based on his research over the lunch hour of the definition of malice?
“A. I can’t remember if he actually wrote it down or if he just brought it back and shared it with us from his memory. But we – I recall we discussed it for a while. I can’t remember if it was half an hour or what, but it wasn’t just a matter of a couple minutes. We talked about it for a while.”
Three other jurors – Juror Nos. 044400, 010213, 016713 – testified to remembering a dictionary definition of “malice” being brought into the jury room but none was able to recall any specific details of the definition or their discussion of it. The remaining jurors had no specific recollection of the incident.
The prosecution and defense investigators attempted to ascertain which dictionary definition of “malice” might have been brought into the jury room by investigating dictionaries kept in the law library of the superior court and the public library near the court. The parties presented the trial court with various examples of definitions culled from these dictionaries, which included both legal and common definitions of the term “malice.” None of these, however, was established to be the actual definition that was brought into the jury room.
Discussing Previous Trials and the Consequences of a Hung Jury
Two jurors recalled that the topic of prior trials came up in connection with one juror’s statement that she had read in a newspaper article that Tedeschi had been tried before. Juror No. 044400 testified that one of the female jurors had read the newspaper or somehow found out about an article that said two juries had already hung, and the jury discussed that if they hung, Tedeschi “would walk free.” Juror No. 044400 testified the discussion was “brief” and occurred towards the end of deliberations. Juror No. 010221 testified to recalling a discussion between two jurors in the hallway about there having been a previous trial; a female juror commented that she had read in the newspaper that Tedeschi had been tried before. Juror No. 010221 could not recall the topic being discussed in the jury room. Nor could Juror No. 010221 recall a discussion in the jury room of what the consequences would be if there was a hung jury.
Juror No. 010117 testified that the jury discussed that if there was a hung jury, Tedeschi would “‘get off scot-free.’” Juror No. 010117 could not recall how long the discussion lasted or how many people participated but testified “it wasn’t long.”
Juror No. 010129 recalled there was some discussion that they could not let there be a hung jury or Tedeschi would go free. According to Juror No. 010129, all the jurors participated in the discussion, and the subject “probably came out back and forth a few times” during the two days of deliberations.
Juror No. 016713 also recalled that some of the jurors discussed that there had been other trials, and if there was a hung jury this time, Tedeschi could go free.
Juror No. 016948, the foreperson, testified that the jury discussed that there had been a previous trial. The jury discussed that this would be the second hung jury if they did not reach a verdict. The jury discussed that Tedeschi might go “scot-free” if there was a hung jury. They also discussed that there might be another trial, which would “burden the family with that grief again .…”
Juror No. 010218, Juror No. 064776, and Juror No. 010217 recalled there was some discussion of a previous trial but not what it would mean to Tedeschi if there was a hung jury.
Juror No. 010213 testified that when the jury first went into the juror room, somebody asked whether this was the second trial, because there “was a long amount of time till it came to trial .… And everybody looked around. Nobody knew. And that’s all I remember about that.”
The remaining two jurors did not specifically recall any discussions regarding Tedeschi being tried previously or the consequences of a hung jury.
The Trial Court’s Ruling
The parties presented their final arguments in the trial court at a hearing on June 29, 2005. On July 6, 2005, the trial court issued a written ruling denying Tedeschi’s petition for writ of habeas corpus. As noted above, the court found three of six alleged instances of juror misconduct had in fact occurred but that the resulting presumption of prejudice had been rebutted. In pertinent part, the trial court ruled:
“4) Did the jury discuss that there had been a previous trial (even though that was not true) and discuss that the defendant might go free if a verdict was not reached and therefore commit misconduct? Yes. Does the evidence rebut any presumption of prejudice that resulted? Yes. Any discussion about a previous trial was relatively brief and did not play a part in the verdict. The jurors expressed a desire to reach a verdict and wondered out loud why the case was so old and what would happen if they were hung. While there certainly should not have been any discussion about this, the evidence proves that the verdict reached was not as a result of any misguided notion of a previous trial or the belief that the defendant would go free if they were a hung jury. [¶] … [¶]
“6) Did a juror bring into the jury room a definition of malice and therefore commit misconduct? Yes. Does the evidence rebut any presumption of prejudice that resulted? Yes. Clearly one of the jurors, on his own, obtained a definition of the word ‘malice.’ This should not have happened, but the evidence shows this did not affect the jury in its verdict. The evidence is that for those jurors who were aware of this action of the juror, the definition was very similar to the judge’s instructions. But again, this misconduct was brief in nature and had no effect on the jury.
“The court notes that the misconduct in numbers 4, 5 [discussing penalty or punishment], and 6 above did not affect the rights of the defendant and did not improperly influence or affect the jury as a whole or any one juror individually. This is true whether one considers the acts of misconduct individually or as a whole. No real or actual bias was displayed by any of the jurors, even those who committed the misconduct. It must be understood that in reviewing the entire case and weighing the misconduct, the evidence was overwhelming that at a minimum the defendant was guilty of at least second degree murder. Any evidence to suggest otherwise was simply not credible.”
DISCUSSION
I. Juror Misconduct in Considering an Extrajudicial Definition of “Malice”
“‘As a general rule, juror misconduct “raises a presumption of prejudice that may be rebutted by proof that no prejudice actually resulted.” [Citations.]’ (In re Hitchings (1993) 6 Cal.4th 97, 118.) In determining whether misconduct occurred, ‘[w]e accept 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.]’ (People v. Nesler (1997) 16 Cal.4th 561, 582 (lead opn. of George, C. J.).)” (People v. Majors (1998) 18 Cal.4th 385, 417.)
There is no dispute in this case that juror misconduct occurred when a juror obtained a dictionary definition of “malice” and shared it with the jury during deliberations. (People v. Karis (1988) 46 Cal.3d 612, 642 [misconduct for jury to refer to dictionary during deliberations for definition of “mitigating”]; Glage v. Hawes Firearms Co. (1990) 226 Cal.App.3d 314, 323-330 [misconduct for civil juror to consult dictionary for definition of “preponderance”]; People v. Harper (1986) 186 Cal.App.3d 1420, 1430 [presumption of prejudice rebutted where jury promptly admonished regarding one juror’s use of dictionary to define “murder”]; People v. Barela (1991) 234 Cal.App.3d Supp. 15, 18-19 [error in providing dictionary to jury waived by failure to object]; People v. Thompson (1990) 50 Cal.3d 134, 174 [presence of an unopened and unused dictionary in jury room does not amount to misconduct]; People v. Barton (1995) 37 Cal.App.4th 709, 714-715 [two dictionaries in jury room, one with Post-it notes on pages defining “aid,” “commission,” “deliberate,” and “principle,” presumption of prejudice rebutted by court’s admonishment and jury’s agreement verdict based upon legal definitions as used in jury instructions].) “Jurors are not allowed to obtain information from outside sources either as to factual matters or for guidance on the law. [Citations.] Use of a dictionary to obtain further understanding of the court’s instructions poses a risk that the jury will misunderstand the meaning of terms which have a technical or unique usage in the law.” (People v. Karis, supra, 46 Cal.3d at p. 642.)
The same prejudice analysis applies to juror misconduct in both criminal and civil cases. (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 416 [“civil litigants, like criminal defendants, have a constitutionally protected right to the complete consideration of their case by an impartial panel of jurors”]; McDonald v. Southern Pacific Transportation Co. (1999) 71 Cal.App.4th 256, 266 [“[a]lthough stated in criminal cases, this rationale applies to civil cases as well”]; Glage v. Hawes Firearms Co., supra, 226 Cal.App.3d at p. 322.)
The question for us to decide is whether the juror misconduct in considering an extrajudicial definition of “malice” 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.’ (In re Carpenter (1995) 9 Cal.4th 634, 653 (Carpenter).)” (People v. Danks (2004) 32 Cal.4th 269, 303 (Danks).)
“‘First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror.’ (Carpenter, supra, 9 Cal.4th at p. 653.) ‘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.’ (Ibid.)” (Danks, supra, 32 Cal.4th at p. 303.)
“Second, ‘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.’ (Carpenter, supra, 9 Cal.4th at pp. 653-654.) ‘Under this second, or “circumstantial,” test, the trial record is not a dispositive consideration, but neither is it irrelevant. All pertinent portions of the entire record, including the trial record, must be considered. “The presumption of prejudice may be rebutted, inter alia, by a reviewing court’s determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual”’ bias. (Id. at p. 654.)” (Danks, supra, 32 Cal.4th at p. 303.)
Under the first test, we cannot say that the extraneous information, objectively viewed, was inherently and substantially likely to have influenced the juror since we do not know what the extraneous information actually was. The record discloses minimal information about the extrajudicial definition of “malice” brought into the jury room. None of the jurors could remember any specific details of the definition. However, one juror believed it was similar to the one given in the jury instructions and the trial court apparently found the juror’s testimony credible. On this record, we can find no basis for concluding that the definition was inherently prejudicial.
Regarding the second test, examining the entire record, we cannot find that actual bias nonetheless arose. “In an extraneous-information case, the ‘entire record’ logically bearing on a circumstantial finding of likely bias includes the nature of the juror’s 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.” (Carpenter, supra, 9 Cal.4th at p. 654.)
Without question, the juror’s conduct in this case was troubling, i.e., consulting a dictionary for the definition of an essential element of the charged crime and sharing it with the rest of the jury, shortly after the trial court clearly referred the jury back to the instructional definition of “malice” and declined the foreperson’s request for a law dictionary. The presence, absence, or negation of “malice” was undeniably a key issue in the case and in the jurors’ assessment of the various theories of liability presented to them. As Tedeschi points out, the jury was instructed, among other things, that “[t]he distinction between murder and manslaughter is that murder requires malice while manslaughter does not.”
Nonetheless, these circumstances alone do not establish a substantial probability that one or more juror was actually biased against Tedeschi as a result of the juror misconduct. We are unconvinced by the main thrust of Tedeschi’s prejudice argument which is that the introduction of the extrajudicial definition of “malice” into deliberations, in his words, “operated to lighten the People’s burden by removing the true legal definition of [“malice”] from the equation.” The record does not disclose what dictionary definition of “malice” was shared with the jury, and, in contrast to some of the cases Tedeschi cites, his suggestion that the jury likely disregarded the legal definition of “malice” provided by the court in favor of the unknown extrajudicial definition is based largely on speculation about the timing of the verdict rather than on objective evidence indicating the jury was actually influenced by the extrajudicial definition.
For example, in Marino v. Vasquez (9th Cir. 1987) 812 F.2d 499, the Ninth Circuit upheld the trial court’s finding that prejudicial misconduct occurred when a juror consulted a dictionary definition of “malice.” In that case, the defendant was convicted of second-degree murder, attempted murder, and felony false imprisonment (Id. at p. 502.) The jury deliberated 28 days and was unable to reach unanimity until after the holdout juror received a dictionary definition from another juror which defined “malice” as “‘active or vindictive ill-will.’” (Id. at pp. 502-503, 505 fn. 7, 505-506.) The dictionary definition was demonstrably different from the legal definition given to the jury, who, like the jury in the instant case, received CALJIC No. 8.11. (Marino v. Vasquez, supra, 812 F.2dat p. 505, fn. 7.) In a declaration, the holdout juror stated he changed his vote to find the defendant guilty on all counts the day after he received the dictionary definitions of “malice.” (Id. at pp. 502-503, 503, fn. 1.)
The jury here was instructed under CALJIC No. 8.11 as follows: “‘Malice’ may be either express or implied. [¶] [Malice is express when there is manifested an intention unlawfully to kill a human being.] [¶] [Malice is implied when: [¶] 1. The killing resulted from an intentional act; [¶] 2. The natural consequences of the act are dangerous to human life; and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.] [¶] [When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.] [¶] The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed. [¶] The word ‘aforethought’ does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act.” (Italicized brackets added.)
In Glage v. Hawes Firearms Co., supra, 226 Cal.App.3d 314, another case cited by Tedeschi, the court of appeal reversed a judgment in favor of the plaintiff on the basis of prejudicial juror misconduct where two jurors looked up the dictionary definition of “preponderance” from the phrase “preponderance of the evidence” and discussed it with the other jurors. The record did “not reveal the actual dictionary definition found by [the jurors] and/or discussed by the jury.” (Id. at p. 320, fn. 2.) The court of appeal rejected the plaintiff’s claim that no harm resulted because the common meaning of “preponderance” found in a dictionary did not differ significantly from the definition in the jury instructions. (Id. at p. 324.) The court noted: “The sole focus of the legal definition of ‘preponderance’ in the phrase ‘preponderance of the evidence’ is on the quality of the evidence. The quantity of evidence presented by each side is irrelevant.” (Id. at pp. 324-325.) However, “…the common meaning of ‘preponderance’ naturally includes, among other things, the notion of greater quantity. Every dictionary we consulted confirms that such a meaning is a standard part of the word’s common definition.” (Id. at p. 325.)
The court went on to conclude that “the record amply supports a finding of a ‘substantial likelihood’ the jury was improperly influenced by the extraneous dictionary definition to Hawes’s detriment. [Citation.]” (Glage v. Hawes Firearms Co., supra, 226 Cal.App.3d at p. 326.) The court summarized the evidence supporting its prejudice finding as follows: “Evidence that (1) the jury discussed the meaning of the word ‘preponderance’ before the alleged misconduct, (2) [jurors] Holmes and Aguilera thereafter looked up the common definition, (3) Holmes discussed it with the rest of the jury, (4) they made a chart to list the evidence, and (5) their vote on the issue of Hawes’s liability then changed substantially are all objectively verifiable acts and occurrences. They, in turn, strongly suggest that the jury might have reached a verdict simply by seeing who presented the most evidence.…” (Id. at p. 327.)
There is no comparable evidence in the instant record to support a finding of a substantial likelihood that one or more juror was improperly influenced by the extrajudicial definition of “malice” injected, apparently briefly, into deliberations. Unlike the cases cited by Tedeschi and summarized above, there is no clear indication that the introduction of the extrajudicial definition of “malice” directly resulted in one or more jurors changing their votes to Tedeschi’s detriment, or caused the jury to reject the proper legal definition in favor of a common meaning of the term. Instead, Tedeschi asks us to speculate that the jury’s dissatisfaction with the instructional definition of “malice” was the single issue holding up the verdict, and that the jury was able to return a verdict relatively quickly after the jury misconduct occurred because it found some guidance in the extrajudicial definition of “malice.”
The standard of review articulated by our Supreme Court requires more than speculation. “We emphasize that before a unanimous verdict is set aside, the likelihood of bias under either test must be substantial.” (Carpenter, supra, 9 Cal.4th at p. 654.) A number of circumstances, revealed by our review of the record, support the trial court’s conclusion that the jury’s receipt of the extrajudicial definition of “malice” was nonprejudicial. A majority of jurors had no recollection of the incident. There is also no evidence the juror mentioned the extrajudicial definition of “malice” more than once or that it engendered lengthy discussion or debate among the jurors. As noted above, the trial court credited juror testimony that the discussion was brief. Thus, this case is different from People v. Nesler, supra, 16 Cal.4th 561. The defendant in Nesler was charged with killing the alleged molester of her young son. (Id. at p. 565.) The impact of possible methamphetamine use on the defendant’s 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 defendant’s 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 “intentionally interjected this outside information into the deliberations when she disagreed with the positions of other jurors.” (Id. at p. 583.) The Supreme Court thus concluded:
“In our view, [the juror’s] 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.)
The instant record reveals no analogous conduct by the juror who obtained an unknown dictionary definition of “malice” during his lunch hour and briefly shared it with the jury.
Finally, notwithstanding Tedeschi’s assertions to the contrary, the trial evidence was overwhelming and could have easily supported a verdict of first degree murder. Without more compelling circumstances indicating that the jury was actually influenced or biased by the extrajudicial definition of “malice,” we are precluded from setting aside the jury’s verdict under the applicable standard of review.
II. Discussing Previous Trials and the Consequences of a Hung Jury
The other instance of juror misconduct at issue is the jury discussing whether Tedeschi had been tried previously and whether his retrial would be barred if the jury failed to reach a verdict. Tedeschi claims the jury’s discussion of this extraneous information, which was factually and legally erroneous, tainted the jury by placing it under inordinate pressure to find Tedeschi “guilty of some offense regardless of the evidence.” We conclude that the jurors’ conduct in discussing previous trials and the consequences of a hung jury in this case was not prejudicial because there was no evidence of juror bias arising therefrom under either test discussed above.
Judging the information objectively, we cannot say that it was information that would have inherently and substantially influenced the jurors. There was nothing in the essential character of the information that Tedeschi had been unsuccessfully tried before, albeit erroneous, that was so prejudicial in context of this trial that its introduction would warrant reversal of the judgment.
Nor is it substantially likely that the jury was actually biased against Tedeschi as a result of its discussion. Tedeschi characterizes the discussion as having been extensive. However, the jurors’ testimony was otherwise. While a majority of jurors had some recollection of discussing whether Tedeschi had been tried before, fewer than half testified to recalling specifically discussing whether Tedeschi might go free if the jury failed to return a verdict. The jurors also had vague and conflicting recollections as to where and when these discussions took place. For example, one juror said it came up a “few times” during the two days of deliberations, while another described it not coming up until the very end of deliberations. Like his argument concerning the jury’s receipt of an extrajudicial definition of malice, Tedeschi’s argument concerning the prejudicial effect of the jurors’ discussion is highly speculative in nature. The record discloses no evidence of how the information affected the jurors’ decisionmaking processes or suggesting the information was utilized the to Tedeschi’s disadvantage. Based on this record, we find no substantial likelihood of juror bias. Accordingly, we will not set aside the verdict of second degree murder.
III. Cumulative Prejudice
Having examined each claimed instance of misconduct separately and found no prejudice, we likewise find no cumulative prejudice from combined instances.
DISPOSITION
The petition for writ of habeas corpus is denied.
WE CONCUR: GOMES, Acting P.J., KANE, J.