Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. F04906686-1 Hillary Chittick, Judge.
Elizabeth A. Egan, District Attorney, and E. Terrence Woolf, Deputy District Attorney, for Plaintiff and Appellant.
Stephen Greenberg, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
A jury found defendant Jesse David Alvarez guilty of two counts of attempted willful, deliberate, and premeditated murder and one count of assault with a firearm. In addition, several firearm enhancements were found true. After the verdicts were entered, it was discovered that at the end of the fourth day of deliberations and before a verdict had been reached, the jury foreperson (No. 29) privately telephoned one of the two hold-out jurors (No. 27) and discussed the case with her. The trial court granted the motion for new trial based on juror misconduct. The People appeal, claiming the trial court erred in granting the motion for new trial. In particular, the People argue the trial court failed to consider the required factors when it granted the motion. We will affirm the court’s order granting a new trial.
FACTS FROM THE TRIAL
On September 23, 2004, Anna P. was alone in a room watching television at the home she shared with her husband Gary, her father Volodia A., her mother, and her sister Diana. Gary was not home, but the others were all present. Anna P. heard a loud car and then later heard a tapping on the front security screen door. She went to the door and saw a male with a shaved head, in his late 20’s, standing at the door. The male said he had a delivery for Anna’s father, Volodia. The male was holding an envelope.
Anna opened the door to take the envelope from the male at the door. She told him she wanted the envelope. He refused, saying that he had to give the envelope to her father. Anna said she would deliver the envelope for him; the man at the door became adamant and pushy. The male kept insisting that he needed to deliver the envelope to Volodia. Anna then asked him for identification. The man then pulled a gun out from under his shirt and shot her in the upper left chest. Anna ran down the hallway and was struck two more times with a bullet, once in her left ear and once in her right hand. Anna ran into the kitchen.
Volodia was in the backyard of the home smoking a cigarette when he heard a noise and ran inside. He saw a male with a gun and heard Anna screaming. The male was pushing open the bedroom door. Volidia ran and grabbed the man around his neck and also attempted to grab the gun. Volodia placed his finger between the silencer and the “slider” on the gun so the man would not be able to shoot the gun. The man tried to shoot Volodia. The male hit Volodia in the face with his elbow and ran out of the house.
Volodia began following the man but stopped when Anna yelled to him that she had been shot and told him to stop and lock the door.
Anna’s neighbor, Melvin Jamison, heard a car on their street. He looked out and saw a tan, four-door, older compact car parked on the street. Later he heard firecracker-type noises and saw a man run to the vehicle. The man’s head was closely shaven. The man got into a car that was occupied by three other males and the car left.
Anna described her assailant to the responding police officer as a Hispanic male in his mid to late 20’s. She described his clothing. While Anna was being treated at the hospital, she was questioned about her assailant. She described him as a Hispanic male, in his late 20’s, approximately five feet seven inches tall, medium build, and having acne scars on his face, brown eyes, and a shaved head.
Identification technicians from the police department gathered evidence from the scene of the shooting. Included in this evidence were several envelopes with a bullet hole through them, several bullets, and bullet casings. Fingerprints and a palm print on one of the envelopes were identified as belonging to defendant.
Based on the fingerprint identification, the police compiled a photographic lineup that included defendant’s photograph and showed it to Anna. Anna picked out defendant as her assailant. Anna testified that at the time she picked out defendant’s photograph she was certain that he was her assailant. In an interview before trial, Anna said she was not sure if she had chosen the right person from the photographic lineup until she saw defendant’s picture on the news, and then she was sure.
Volodia was not able to identify defendant and could not describe him in any detail because Volodia was behind defendant when they struggled. Volodia’s description of defendant was that he had a big head. At trial, after viewing defendant’s head from the back, Volodia was not sure if he would describe defendant’s head as big.
In the early morning hours of September 24, 2004, Fresno Police Officer Kennan Rodems responded to an apartment complex after a security guard called to report a suspicious vehicle. The vehicle, a later model blue Honda Accord, was located approximately one-half mile from the scene of the shooting. The front driver’s window of the car was gone, the car was dirty, and on the floorboard there was a loaded.25 caliber gun with a silencer. The security guard did not recall seeing the car the previous night. The gun found in the car was not the gun used in the shooting.
The car was registered to Guillermo Canchola, a resident of Riverside and a former neighbor of defendant. Canchola had purchased the car in 2002 to sell it at a profit. After he was unable to sell it, he placed in on a lot next to his brother’s home. The keys to the car had been left in the car under the mat. Defendant had been to the lot where the car was stored. Canchola did not realize the car was gone until police came to question him about it.
Tigran Pogosyan testified for the defense. He testified that he lived at the apartment complex where the car was found. He recalled that the car had been parked there for approximately two weeks. He recalled the car because it was parked in an area where Pogosyan normally parked his van and the car disrupted Pogosyan’s normal parking routine.
Defendant’s estranged wife, Nadja Assef, testified for the defense. She married defendant in June of 1987. They lived in Riverside. In July of 2004, Assef moved to Arizona with her children. Defendant helped her move and then he returned to Riverside to sell the home in Riverside.
Assef returned to California in September 2004 for the purpose of having a quinceanera celebration of the 15th birthday of defendant and Assef’s daughter. Assef learned on September 9, 2004, that defendant had been in a motorcycle accident that day. She visited him at the hospital. His left hand and left arm were bandaged.
Defendant was able to attend the quinceanera on September 11, 2004, but he left early because he was in pain. Assef recalled that, on the following day, defendant returned with Assef to Arizona where she cared for him until early October. Defendant was arrested approximately a week after he returned to California.
Assef testified that defendant has green eyes and has never had acne. At the time of trial it was Assef’s intent to divorce defendant.
The People called Ernesto Arzola in rebuttal. He testified that he was a neighbor of defendant in Riverside. He saw defendant at the quinceanera and defendant’s arm was bandaged. Defendant left the party early. Arzola testified that he saw defendant working around the house almost every day after the accident. Sometimes defendant had his shirt off, but Arzola did not recall seeing any bandages or injuries to defendant.
Jessica Franks testified that she knew defendant, had lived in his house in Riverside, and was living there the day of defendant’s motorcycle accident. Franks said she stayed at the house a week or two after the accident and took care of him. On cross-examination, she said that she does not do well in remembering dates and that her memory was clouded in 2004 because of her methamphetamine use.
A portion of defendant’s testimony from his prior trial, which resulted in a hung jury, was admitted. In this testimony, defendant stated he was in the hospital for three days and that he had “busted” up his elbow, “fractured” his left arm, “banged” up his knee, and suffered cuts to his side. Defendant utilized a temporary cast.
Dr. Venu Gopal, a forensic pathologist, examined defendant’s hospital records and could see no evidence of a fracture on the X-rays in the medical records. Defendant had a lot of road rash and swelling; his cuts were sutured. Dr. Gopal confirmed on cross-examination that defendant left the hospital with a temporary cast.
PROCEEDINGS AND FACTS FROM NEW TRIAL MOTION
The jurors were sworn to try this case on June 6, 2006. The jurors began deliberating the case on Friday, June 16, 2006, at 2:42 p.m. They left for the weekend at 4:30 p.m. Deliberations resumed on Monday morning, June 19, 2006. They deliberated the entire day, taking some breaks (including a lunch break), and they left at 4:30 p.m. On the 19th, they requested and received the readback of testimony of four witnesses.
The jury continued deliberations on Tuesday, June 20, 2006, in the morning. Shortly after deliberations began on Tuesday morning, the foreperson (No. 29) sent a note to the judge requesting a personal conversation with the judge to discuss “direction of jury instructions.” No. 29 requested that this conversation be kept confidential if possible. After conferring with counsel, the court responded that it was willing to try to clarify any questions about the instruction upon written request; however, it could only do so for all 12 of the jurors together. Later that morning, the jury requested and received the readback of the testimony of four witnesses. The jurors deliberated until 4:25 p.m. that day.
On Wednesday, June 21, 2006, the jury began deliberations again in the morning. The court started the day by responding to a request received the night before from No. 29. No. 29 asked a hypothetical question about a hypothetical jury member showing a bias and other hypothetical situations. The note asked that the request be ignored if this communication with the court could not be kept confidential. The court responded that if one of the hypothetical situations were to occur, the juror should send a note and the court would take further action as appropriate. On this day, the jury also asked for further readback of testimony. The jurors did not reach a verdict and left at 4:30 p.m.
The jury returned to deliberate on Thursday, June 22, 2006, at 9:28 a.m. The foreperson had a question regarding which forms to sign, and at 11:23 a.m. the verdicts were read in court.
A petition for the release of juror identifying information was filed by defense counsel in August of 2006. This request included declarations from juror Nos. 8 and No. 27. No. 8 stated that she and No. 27 had both expressed the view during deliberations that defendant was not guilty. No. 29 told No. 8 that the jury was going to come to a verdict no matter what and there would not be a hung jury. No. 8 also reported that No. 29 told her she would be brought before the judge to explain her vote of not guilty.
In her declaration, No. 27 expressed that she and No. 8 had maintained a vote of not guilty during three days of deliberation. On the evening prior to the verdict, No. 27 received a telephone call from No. 29. No. 29 told No. 27 that No. 8 had not turned in her vote before they left for the day. No. 29 told No. 27 that she did not have a problem with No. 27, but No. 29 had previously turned No. 8 in to the judge for not complying with her responsibilities. As reported by No. 29, the judge said she would handle it if No. 8 continued in her noncompliance. No. 29 told No. 27 that No. 27 needed to talk to No. 8. No. 27 was worried that her name would be turned into the judge also. She was particularly worried about this because her niece worked as a clerk for the judge.
The court sent letters to the jurors asking if they would agree to the release of their personal identifying information. Defendant filed a motion for new trial claiming that No. 8 and No. 27 were the victims of intimidation and misconduct by No. 29, and he argued that as a result he did not receive a trial by 12 fair and impartial jurors.
The People opposed the motion for new trial, claiming there was no misconduct or, even if there was misconduct, it was minor in nature and not prejudicial. Attached to the opposition of the People was a declaration from No. 29. No. 29 stated that she was elected foreperson. No. 29 described her relationship with No. 8 as antagonistic and felt that No. 8 was unwilling to deliberate. No. 29 told No. 8 that if she did not deliberate she would have to go before the judge and explain why she would not deliberate.
On the day before the verdict was reached, the jury took a vote by ballot. No. 29 tallied up the ballot and announced the results. Apparently No. 29 miscalculated the tally because No. 8 told her as the group was leaving that No. 8 had not voted during the ballot. No. 29 became extremely angry at No. 8 and told her so. On the way home, No. 29 called No. 27 and told her what No. 8 had done. No. 29 said she was tired of dealing with No. 8 and told No. 27 that she (No. 27) would have to take over and deal with No. 8. No. 29 said she did not discuss the facts of the case with No. 27 during this telephone conversation but may have told No. 27 about the note she sent to the judge about No. 8. The next morning, No. 27 took over deliberations and a unanimous guilty verdict was achieved.
An additional declaration was filed by the defense. The declarant, Cassie Tosteson, is an attorney and sat in on an interview with No. 29 conducted by defense counsel. During the interview, No. 29 said she was elected foreperson as she was the only “white collar” individual in a group of “blue collar” types. No. 29 felt she needed to control the group. It was No. 29’s belief that No. 8 was not deliberating according to the rules. No. 29 contacted No. 27 to convince No. 27 to contact No. 8 about her vote and deliberations. No. 29 admitted that she had “cussed” out No. 8 after the other jurors had left the room. No. 29 said she had been in regular contact with other jurors since the verdict and there was “no way” they were going to allow defendant or his lawyers to overturn the verdict. She was well aware that No. 27 and No. 8 were the two hold-out jurors prior to her contact with No. 27 outside the presence of the other jurors.
The court ordered a hearing so it could decide the credibility of No. 8, No. 27, and No. 29. No. 29 testified at the hearing, adding details not contained in her declaration. During deliberations, No. 29 told No. 8 that if she did not deliberate she would have to explain herself to the judge. The difficulties between No. 8 and No. 29 began on the first day and escalated severely the evening before the verdict was reached when No. 8 informed No. 29 that she had miscounted the vote because No. 8 had not voted. No 29 became instantly angered, “cussed” at No. 8 and told her she would have to explain herself tomorrow to the other jurors. No. 29 left and walked out of the building “blowing off steam.” As she drove home, No. 29 telephoned No. 27 and told No. 27 she had to take over deliberations; No. 27 agreed to do so. No. 29 estimated that this conversation lasted five to ten minutes. No. 29 could not recall what was said to No. 27 about the note No. 29 had sent to the judge regarding No. 8, but she thought she told No. 27 that she had written a note to the judge and would do it again if she had to. The entire subject matter of the telephone conversation between No. 29 and No. 27, as testified to by No. 29, was the behavior of No. 8. No. 29 testified that she and No. 27 did not discuss the facts or the law during their telephone conversation.
On cross-examination, No. 29 stated that it was her lifelong dream to be on a jury and that she was in control of the jury. During deliberations, she remarked, she had no reason to cut the deliberations short; she could deliberate all summer. It was not disputed by No. 29 that she told defense counsel she was in control of the jury and she would do whatever it took to keep defense counsel from overturning the verdict. She reiterated that the subject of her conversation with No. 27 was solely about No. 8. No. 29 testified that the jury reached its verdict in approximately one hour after starting deliberations on the final day, but it took quite a bit of time after they reached their verdicts until they went into the courtroom with the verdict.
The defense called No. 27 to testify. No. 27 said the jury took votes seven or more times by ballot. No. 27 and No. 8 voted not guilty and the other jurors voted guilty. On the day before the verdict was reached, a vote was taken at the end of the day. While No. 27 was on the way to her car, she received a call from No. 29. No. 29’s voice was raised and she sounded excited as she told No. 27 that No. 8 did not cast a vote during the last balloting of the jurors. No. 29 said that she had written a note to the judge that No. 8 was not complying with her responsibilities and that if No.8 continued then the judge would handle it. No. 29 told No. 27 she did not want to tell the judge they were a hung jury and told No. 27 that she (No. 27) needed to talk to No.8. No. 27 felt intimidated by the conversation and mentioned that her niece was the court’s clerk. She also stated that No. 29 had told her on more than one occasion to talk to her niece about following the jury instructions, but No. 27 refused to do so.
On further examination, No. 27 testified that No. 29 discussed that No. 27 and No. 8 were not following the instructions regarding the credibility of witnesses. During the telephone call, No. 29 talked about accepting the credible eyewitness testimony and No. 29 was upset that No. 8 was not following the instructions related to this. No. 29 told No. 27 that if No. 8 had followed the instructions correctly she would have voted the other way. No. 29 explained her interpretation of those instructions to No. 27.
No. 8 testified that No. 29 told her that because she (No. 8) was voting not guilty and was not following the instructions she would have to go before the court and explain her position. No. 8 was also informed by No. 29 that if she followed the instructions correctly she would be voting guilty. In particular, No. 29 focused on the personal identification of the defendant by the victim. It was agreed by No. 8 that she and No. 29 did not get along during deliberations. No. 8 did not turn in her ballot at the end of deliberations on the day before the verdict was reached. She recalled that No. 29 was very angry with her, but she did not recall the content of the discussion.
Cassie Tostensen testified at the hearing to the matters contained in her declaration already before the court.
After hearing the arguments of the parties, the trial court stated its findings. The court found the evidence regarding the claim of threats made to No. 8 by No. 29 ambiguous and that there was no showing that such a conversation took place outside of deliberations. Thus, the court found no misconduct regarding the conversations that No. 29 had with No. 8.
The court found No. 27 credible. It determined the telephone call from No. 29 to No. 27 outside of deliberations was clear misconduct. In crediting the testimony and declaration of No. 27, the court found that No. 29 told No. 27 that she had reported No. 8 to the judge and that this jury was not going to be a hung jury. The court found that No. 29 said that No. 27 and No. 8 were not following the guidelines in determining credibility and if they followed the instructions the votes of No. 8 and No. 27 would be guilty. In addition, the court found that the telephone call made by No. 29 to No. 27 was not inadvertent, but that No. 29 actively called No. 27; this was a significant act of misconduct. In looking at the surrounding circumstances, the court noted that it was more threatening when one of the majority jurors talks privately to the one or two minority jurors. Significant to the court’s determination was that this was a private communication about a significant issue. Accordingly, the court granted the motion for new trial based on jury misconduct.
The People questioned the court’s failure to consider the facts of the actual case in reaching its decision. The court responded that it cannot engage in a harmless error analysis when determining jury misconduct of this nature and cannot consider the facts from trial.
The People filed a motion for reconsideration, claiming the court erred in granting the motion for new trial without considering the totality of the circumstances, specifically declining to consider the nature of the evidence and issues at trial, and not considering the strength of the evidence against defendant, which the People claimed to be overwhelming.
At the outset of the hearing on the motion, the court stated its belief that the process of considering the strength of the evidence was applicable to cases where the offending juror’s receipt of extraneous evidence was the act of misconduct; there was no extraneous evidence received here, the misconduct being the very communication made by the offending juror to another juror outside of the full jury’s deliberation. The court stated, “Juror misconduct of this nature that goes to the very heart of the trial process is excused because it was a good case for the prosecution is not the state of the law.”
Even though the court thought it could not consider the state of the evidence, the court went on to say that if it were able to consider the level of evidence at trial, its ruling would have been the same. The People argued that when the strength of the evidence is compelling, like it was here, the type of call made by No. 29 to No. 27 should not make a difference.
The court reiterated that even if it had considered the entire record, including the proof, the court’s determination to grant the motion would have been the same. The court pointed out that the misconduct went to the heart of jury deliberations. In addition, the court noted that the first trial in this case resulted in a mistrial and in the current case the jurors deliberated a significant amount of time before they reached a verdict. The court again repeated that it would reach the same decision even if it were able to weigh the evidence in this case.
DISCUSSION
1. Standard of Review in the Trial Court for Jury Misconduct
“[T]ampering contact or communication with a sitting juror... usually raises a rebuttable ‘presumption’ of prejudice.” (In re Hamilton (1999) 20 Cal.4th 273, 295.) Although the contact here was between two jurors, it occurred outside the deliberation room and amounted to No. 29’s tampering with deliberations by speaking to No. 27 in private about deliberations. It is not disputed by the parties that there was jury misconduct.
The presumption of prejudice is rebutted if after a review of the entire record there is no reasonable probability of prejudice, “‘i.e., no substantial likelihood that one or more jurors were actually biased against the defendant.’“ (People v. Harris (2008) 43 Cal.4th 1269, 1303.) A review of the entire record includes the nature of the misconduct and the surrounding circumstances. (Ibid.)
When a juror’s receipt of extraneous information constitutes the misconduct, the rebuttal of the presumed prejudice is judged by a review of the entire record and the trial court may find the misconduct nonprejudicial unless there remains a substantial likelihood of juror bias. (In re Carpenter (1995) 9 Cal.4th 634, 653 (Carpenter).) People v. Danks (2004) 32 Cal.4th 269, 303, iterates that such bias can appear in two different ways:
“‘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.)
“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.)”
2. Standard of Review on Appeal from a Motion Granting a New Trial
It is a “longstanding principle that an order granting, as opposed to denying, a new trial is reviewed liberally, particularly with regard to the trial court’s finding that an error or irregularity in the original trial was prejudicial.” (People v. Ault (2004) 33 Cal.4th 1250, 1255.) This rule applies even “where the error or irregularity is conceded, and prejudice is the only disputed issue, even if the assessment of prejudice involves a mixed question of law and fact.” (Ibid.) “[W]hen a trial court, after examining all the relevant circumstances, grants a new trial in a criminal case on grounds that proven misconduct was prejudicial, that determination is not subject to independent or de novo review on appeal, but may be affirmed unless it constituted an abuse of discretion.” (Ibid.)
While acknowledging that the standard of review applicable to an appeal from an order granting a new trial is abuse of discretion, the People claim this standard does not apply here because the trial court did not review all the relevant circumstances. In particular, the People assert the court did not consider the total circumstances of this case in making its ruling because it failed to consider the strength of the evidence against defendant.
As previously set forth, during the motion for reconsideration, the court stated three separate times that even if it had considered the strength of the evidence it would have ruled in the same manner. The People argue that this is no substitute for actually considering such evidence and allowing argument regarding the state of the evidence. We disagree. The court heard the entire jury trial and was well aware of the evidence. In addition, the court allowed the parties to extensively argue orally and in writing the original motion and the motion for reconsideration. In denying the motion for reconsideration and stating that even if it had considered the strength of the evidence it would have ruled in the same manner, the court demonstrated that it had given consideration to the strength of the evidence. The People were not deprived of the court’s consideration of the strength of the evidence.
The People have failed to show that we should depart from the standard of review of abuse of discretion as set forth in People v. Ault, supra, 33 Cal.4th at page 1255.
3. Consideration of the Strength of the Evidence
The People’s next argument is that, regardless of which standard of review applies, the court abused its discretion because it failed to consider the required factors in reaching its decision. The People contend the trial court’s failure to consider the entire record, including the strength of the evidence against the defendant, constituted in itself an abuse of discretion as a matter of law and requires reversal of the court’s order granting a new trial.
As we explained in Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, “[w]hile an irrational decision would usually constitute an abuse of discretion, the legal standard of review encompasses more than that: ‘the scope of discretion always resides in the particular law being applied, i.e., in the “legal principles governing the subject of [the] action....” Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an “abuse” of discretion.’“ (Id. at p. 393, brackets in original.)
Relying on Horsford, the People assert that the trial court’s failure to consider the strength of the evidence against defendant transgressed the confines of the principles of law applicable to consideration of a claim of jury misconduct and fell outside the scope of discretion, thus resulting in an abuse of discretion.
Again we emphasize that the trial court stated three separate times that if it had considered the evidence against defendant it would not have altered its decision. Although the trial court believed it could not look to the strength of the evidence, it did examine the strength of the evidence and gave its alternative interpretation that even with evaluation of the strength of the evidence the decision would be the same.
The People have failed to show the trial court abused its discretion when it made its decision because the trial court made an alternative analysis utilizing the principles of law the People claimed were applicable to the decision. Thus any failure in the court’s initial consideration of the issue of jury misconduct was remedied when the court analyzed the matter utilizing the standards the People claimed were necessary to a proper consideration of the matter.
4. Insufficient Evidence to Rebut Prejudice
The People contend that in light of the overwhelming evidence and the relatively innocuous misconduct of the foreperson, the trial court abused its discretion when it granted the motion for new trial. The People claim their characterization of the evidence as overwhelming is probably an understatement and that the evidence “did not leave room for any reasonable doubt.” The misconduct by the foreperson is characterized as “relatively innocuous,” “not egregious,” and “relatively minor.” The People conclude this argument by stating, “[i]f the evidence of guilt in this case does not overcome any presumption of prejudice as a result of a single instance of relatively minor misconduct by a jury foreperson, it is difficult to imagine any case where the evidence of guilt could rebut the presumption of prejudice.”
While the evidence against defendant was strong, we would not characterize it as overwhelming. Even if we assume for the sake of argument that the evidence against defendant is overwhelming, the second premise of the People’s argument is not supported by the record. The jury foreperson, No. 29, telephoned one of the two holdout jurors (No. 27) outside of court after their fourth day of deliberations. During this call, No. 29 discussed a key area of the case, eyewitness identification, with the holdout juror. No. 29 also discussed the instruction relating to eyewitness identification and told No. 27 what her (No. 29’s) interpretation of that instruction was. No. 29 suggested that if the holdouts would follow the instructions correctly they would find defendant guilty. No. 27 was told by No. 29 that she had reported No. 8 to the court for not deliberating properly. No. 27 was instructed to take over deliberations the next day and speak to No. 8. In addition, on more than once occasion, No. 29 told No. 27 she should talk to her niece, a court clerk, about the instructions. Although the trial court did not discuss the allegations regarding the niece in reaching its decision, we note that it was also misconduct for No. 29 to urge another sitting juror to discuss the case with someone who was not on the jury and was, in fact, part of court staff.
We find the trial court’s assessment of the nature of the misconduct to be much more accurate than the one posited by the People. The trial court found there was a substantive discussion of evidence between jurors outside the presence of the remaining jurors and this discussion went to the heart of deliberations. The court also found that significant jury misconduct of this nature that goes to the very heart of the trial process is not excused because the prosecution had a strong case.
The People’s argument that the evidence here did not leave room for any reasonable doubt and in light of the nature of the misconduct it was an abuse of discretion to find prejudice to the defendant from such misconduct is suggestive of dismissing the importance of each member of a jury in such a case. “‘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 it’“ [citations].’“ (People v. Harris (2008) 43 Cal.4th 1269, 1303.)
To briefly repeat a portion of our discussion on an earlier point, there is no dispute here that jury misconduct occurred; such misconduct raises a rebuttable presumption of prejudice. “[W]hether an individual verdict must be overturned for jury misconduct or irregularity ‘“‘is resolved by reference to the substantial likelihood test, an objective standard.’“‘ [Citations.] Any presumption of prejudice is rebutted, and the verdict will not be disturbed, 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.” (In re Hamilton (1999) 20 Cal.4th 273, 296.)
Although No. 27 received information from No. 29, an “extraneous” source in the sense that the information came from outside the deliberation room, the weight of the evidence against defendant at trial was not the significant factor in determining prejudice. This is unlike a case where a juror obtains information pertinent to the facts being decided by the jury. In such a case, the weight and type of evidence at trial is much more critical in assessing how the outside evidence may have affected the verdict. The more pertinent part of the record here was the evidence regarding deliberations and how the course of deliberations changed after No. 29 contacted No. 27 outside of deliberations.
The nature of the misconduct was neither minor nor innocuous—it was significant and did go to the heart of the case. The prior jury in this case ended in a hung jury. The jury here had deliberated over the course of 4 days and there remained two jurors who believed defendant was not guilty. After the foreperson called one of the holdout jurors and discussed critical instructions and the case with her, deliberations resumed the next morning and a guilty verdict was reached in approximately an hour. In addition, the fact that the prior jury ended in a hung jury and this jury deliberated over the course of four days with two jurors still believing the defendant was not guilty weighs heavily against the prosecutor’s assessment that the facts of this case did not leave room for any reasonable doubt.
The prosecution failed to demonstrate that no prejudice actually resulted from the juror misconduct; having failed to do so, defendant is entitled to a new trial. Under these circumstances, the trial court did not abuse its discretion when it granted the motion for new trial.
5. Constitutional Requirements
“No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any mater of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, sec. 13.)
The People argue that the trial court failed to examine the entire cause in this case, including the evidence, and thus did not comply with the above quoted section from the California Constitution.
The trial court stated three separate times that if it had considered the evidence against the defendant in this case in addition to the other factors it considered, it would have granted the motion for new trial. Thus the court rejected the People’s position after an examination of the entire cause. No constitutional violation has been shown.
DISPOSITION
The order granting the motion for new trial is affirmed.
WE CONCUR: LEVY, J. CORNELL, J.