Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 201235
Haerle, J.
I. INTRODUCTION
After a five-day jury trial and jury deliberations of the same length, appellant was convicted of one count of second degree murder and sentenced to a term of 15 years to life in state prison. He appeals claiming that the trial court improperly denied (1) his motion to suppress his confession to the police, (2) his objections to a portion of CALCRIM No. 570, with which the jury was instructed, a portion he contends contains an improper statement of the law regarding the issue of “sufficient provocation, ” and also his objection to a portion of the prosecutor’s closing argument on the same subject, and (3) his motion for a new trial, a motion based on alleged prejudicial jury misconduct.
We disagree with appellant’s argument regarding his motion to suppress, but do agree that there was prejudicial jury misconduct which was not rebutted. We thus remand the case to the trial court with instructions to grant appellant’s motion for a new trial on that ground. For this reason, and also because CALCRIM No. 570 has been revised since the trial in this case, we need not and do not reach appellant’s contention regarding alleged instructional error.
II. FACTUAL AND PROCEDURAL BACKGROUND
On July 27, 2006, the victim, Guy West, who lived alone in an apartment on Polk Street in San Francisco, was found dead in that apartment; at the time, West was 68 years old. When he was found by the building manager and a pest control person, he had clearly been dead for some time; his body was lying on a cot in a walk-in closet and covered with a blanket. According to a medical examiner, West’s body had been moved to that location, and he had apparently been beaten to death in the main room of the apartment, the floors and walls of which showed much blood. Per an immediately-following police investigation, there was also blood in one corner of the main room of the apartment and on books and papers placed in several paper bags in the middle of that room. The medical examiner opined that West had been beaten to death, the immediate cause of death being multiple blows, specifically eight or nine, to his head and neck. According to the testimony of two crime-scene inspectors, the overall scene suggested heavy blows to West with a blunt object, movement of his body to the cot in the closet, and subsequent attempts to clean up some of the blood in the apartment.
The building manager and another resident of the building told the police that appellant, a much younger man (age 34 in 2007) who was homeless, often came to the victim’s apartment, and sometimes stayed there with him. Indeed, appellant apparently once told the manager that he lived in West’s apartment.
Subsequent evidence established that, several year earlier, appellant and the victim had had a sexual relationship, but that this was no longer the case at the time of West’s death.
Two San Francisco Police Inspectors, Joseph Toomey and Maureen D’Amico, were put in charge of the investigation into West’s death. After interviewing several residents of the building, as well as the building manager, and learning of appellant’s regular visits to West’s apartment, they issued a “police bulletin, ” which included a picture of appellant, and undertook to see that it was distributed in the neighborhood where West had lived. According to Toomey, the bulletin was issued because “we wanted to talk to Mr. Crandall. He was a roommate of the-Mr. West. He hadn’t been seen. We wanted to speak to him to see if he could help us in the homicide of Mr. West.”
On the evening of August 3, 2006, San Francisco Police Officer Thomas Costello was dispatched to a liquor store at Geary and Hyde Streets in response to a call from the proprietor of that store stating that “there was a wanted person in his store.” According to the dispatcher, the store clerk knew this because, the same day, a policeman had been in the store and “showed him a photo of a person that they wanted to talk to. And he was saying that it was a wanted person, and it was a brief suspect description.”
By the time Costello arrived, appellant had left the store, but the shopkeeper had followed him and pointed him out to Costello; appellant was descending Hyde Street from Geary Street to O’Farrell Street. Costello stopped appellant, pat-searched and handcuffed him, and placed appellant into his police car. Costello told appellant that “[s]omeone wants to talk with you.” Via the police car’s computer, Costello confirmed that “Mr. Crandall was to be held for homicide.” Costello then took appellant to the central police station, and placed him in the “lineup room” and handcuffed him to a bench in that room. Costello stated that appellant was at all times “cooperative [and] offered no resistance.”
At around 8 p.m. that evening, Inspectors Toomey and Philpott arrived at that station and room. Toomey-who was one of the two officers who had sent out the “be on the lookout” bulletin earlier-introduced himself to appellant and told him “he was not under arrest.” Officer Costello then removed the handcuffs from appellant. Toomey asked appellant if he would come down to the station containing the Homicide Detail for an interview, and appellant agreed to do so. The three men then drove, in an unmarked police car, to that station; appellant sat alone in the back seat with the two inspectors in the front seats. On the way, the inspectors stopped at a Starbuck’s and Inspector Philpott went in to get coffee. As he did so, he asked appellant if he also wanted a cup; appellant declined.
The inspectors then drove to the station and all three entered an interview room. Appellant was given his Miranda rights and waived them; he was also told again that he was not under arrest. His subsequent interview was taped (and later shown to the jury).
After he was read his rights, Toomey asked appellant if he minded talking to them about the victim, West. Appellant replied: “No, not at all, not at all.” He then confirmed that he had lived with West on and off for the past “eight and a half years.” On his own, appellant then brought up the name of another friend, “Chuck” and then went on: “You guys gave him [Chuck] a card I think. I talked to him last Friday, and I’d been meaning to come over here because I heard you wanted to talk to me but I just... I don’t know, I’ve just been procrastinating. “
The officers then clarified who “Chuck” was, and appellant volunteered that that person “told me that Guy passed away from natural causes and so... you guys want to just speak to me. I haven’t... everyday I’ve been meaning to come over here but I just.” Appellant also confirmed to the inspectors that he and West had been lovers for “[m]aybe just a couple weeks. But after that, it was just more platonic for years....”
Toomey also recalled finding ropes, wigs, and stockings in some of the bags in West’s apartment.
Appellant then told the inspectors that, although he knew nothing about how West had died, the two of them had “argued constantly” when appellant stayed at West’s apartment. After considerably more questioning, finally appellant admitted that he and West had had an “argument” in which West was “yelling and screaming and slamming doors” as a result of which appellant conceded: “I lost control.” West was, appellant continued, “in a lot of ways a monster” and had “threatened to kill me a few times.” As a result of West’s behavior, appellant continued, he picked up a glass pitcher and, from behind, hit West with it more than once. As West lay on the ground, he made a noise, so appellant hit him again to make him be quiet. He then hit West repeatedly with the pitcher, put it back on an end table, moved the victim to a bed, and eventually left the apartment because he feared being arrested. All of this happened, appellant told the inspectors, on July 17 or 18, 2006.
On March 26, 2007, an information was filed charging appellant with one count of murder under Penal Code section 187. After, as noted, a five-day jury trial, on June 21, 2007, appellant was convicted of second degree murder.
On October 11, 2007, appellant was sentenced to the term noted above. He filed a notice of appeal five days later.
III. DISCUSSION
A. The trial court properly denied appellant’s motion to suppress his confession.
Appellant contends that his confession to Inspectors Toomey and Philpott was inadmissible because it came after an unlawful arrest by Officer Costello and that, therefore, the trial court erred in denying his motion to suppress the confession. We disagree.
After briefing and oral argument, the trial court denied appellant’s suppression motion, first ruling that it was admissible under the Fifth Amendment because the inspectors had clearly given appellant an appropriate Miranda warning. Moving onto the Fourth Amendment issue, i.e., the allegedly unlawful seizure, the court first found that, although Officer Costello had reasonable cause to detain appellant on Hyde Street on the night of August 3, 2006, he had no probable cause to arrest him. And the latter was what occurred, the trial court ruled, because appellant was handcuffed and taken to the first police station. The court then stated: “The law is clear that any statements given by Mr. Crandall after he was taken without probable cause must be suppressed, unless the court finds sufficient attenuating circumstances so as to remove the taint of the police illegality.” It then continued:
“The United States Supreme Court in Brown [v. Illinois (1975) 422 U.S. 590] at pages 603 and 604, following its ruling in Wong Sun versus United States at 371 U.S. 471, sets forth four factors for the court to consider in determining whether or not the confession is the product of free will[:] whether or not Miranda warnings were given, the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and the flagrancy of the official misconduct.
“In considering those factors with respect to the facts of this case, this court finds that Mr. Crandall’s confession was voluntary.
“One, Miranda warnings were given, and that has already been discussed by the court with respect to the previous motion.
“Two, the time between the arrest and the interview with the inspectors was about two hours. While this is not a great deal of time and would not in and of itself be sufficient to show [an] attenuating circumstance, what is more persuasive to this court is the extent and character of the intervening circumstances.
“The inspectors arrived at the police station where Mr. Crandall was. Inspector Toomey does not remember if Mr. Crandall was handcuffed when he arrived, but if he was, the handcuffs were removed right away.
“Inspector Toomey is clear that when he arrived, he told Mr. Crandall that he was not under arrest but that he would like to talk with him about Guy West and that Mr. Crandall agreed to go with the inspector and talk with him.
“Inspector Toomey was in a business suit. They went to the Hall of Justice. They went in an unmarked car that had normal door locks. Mr. Crandall was not locked in the car. They stopped for coffee along the way.
“And of great significance to this court is that Mr. Crandall stated at the beginning of the interview not once but twice that he had heard that the inspectors had asked about him and had been wanting to come and talk but just had not gotten around to doing so before this time.
“The official misconduct here, the initial taking of Mr. Crandall into custody and bringing him to the station was not so flagrant as to overcome the other factors pointing to the voluntariness of Mr. Crandall’s statement.”
We believe the trial court was correct in its rejection of appellant’s motion to suppress. Our standard of review of such an issue has been recently stated by our Supreme Court as follows: “‘In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court's resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]’ [Citation.] In evaluating whether the fruits of a search or seizure should have been suppressed, we consider only the Fourth Amendment’s prohibition on unreasonable searches and seizures. [Citation.]” (People v. Brendlin (2008) 45 Cal.4th 262, 268.)
We will first briefly summarize the relevant law in this area: “Because of the particular interests protected by the Fourth Amendment, a statement must be suppressed, even when knowing, voluntary, and intelligent, if it is the direct product of an illegal arrest or detention.” (People v. Boyer (1989) 48 Cal.3d 247, 267, overruled on another point in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; see also People v. Jenkins (2004) 122 Cal.App.4th 1160, 1170-1171 (Jenkins).) “Rejecting a strict ‘but for’ test, the United States Supreme Court has admonished that in such cases, ‘the more apt question... is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” [Citation.]’ (Wong Sun [v. United States (1963)] 371 U.S. 471, 488 [(Wong Sun)].) ‘Under Wong Sun, evidence is not to be excluded merely because it would not have been obtained but for the illegal police activity. [Citation.] The question is whether the evidence was obtained by the government’s exploitation of the illegality or whether the illegality has become attenuated so as to dissipate the taint. [Citation.]’ [Citation.]” (People v. Boyer (2006) 38 Cal.4th 412, 448.) “ ‘The degree of attenuation that suffices to dissipate the taint “requires at least an intervening independent act by the defendant or a third party” to break the causal chain in such a way that the [incriminating evidence] is not in fact obtained by exploitation of the illegality. [Citations.]’ [Citation.]” (People v. Medina (2003) 110 Cal.App.4th 171, 178.)
As the trial court correctly noted, the key authority in circumstances such as those present here is the United States Supreme Court’s decision in Brown, a case regularly cited in cases involving the admission of confessions obtained after an allegedly illegal detention or arrest, or failure to properly Mirandize a defendant. (See People v. Gonzalez (1998) 64 Cal.App.4th 432, 442 (Gonzalez) and Jenkins, supra, 122 Cal.App.4th at pp. 1177-1179 .)
“[T]he Supreme Court in Brown v. Illinois [(1975) 422 U.S. 590, 603-604 (Brown)] identified four factors a court should consider in determining whether a defendant’s confession was the product of free will or the result of exploiting an illegal arrest. Those factors are: the giving of a Miranda warning, the temporal proximity of the arrest and confession, the presence of intervening circumstances and the purpose and flagrancy of the official misconduct.” (Gonzalez, supra, 64 Cal.App.4th at p. 442.) “Nonetheless, the ultimate question remains whether there is ‘ “ ‘an intervening independent act by the defendant or a third party’ to break the causal chain in such a way that the... confession is not in fact obtained by exploitation of the illegality.” ’ [Citations.]” (Jenkins, supra, 122 Cal.App.4th at pp. 1179-1180.) The prosecution bears the burden of showing that evidence is not the fruit of illegal arrest or search and is therefore admissible. (People v. Willis (2002) 28 Cal.4th 22, 38.) “[T]he more attenuated the confession is from the unlawful arrest-that is the more the confession is the product of the defendant’s free will and the less it is the product of the initial illegality-the less effect suppressing the confession will have on deterring unlawful arrests.” (Gonzalez, supra, 64 Cal.App.4th at p. 443.)
The Gonzalez court then summarized the law as set forth in the combination of Brown and Wong Sun as follows: “The purpose of the exclusionary rule in Fourth Amendment cases, of course, is to deter the police from engaging in unlawful searches and seizures. [Citing Brown.] Arguably, this purpose could be accomplished by a per se or ‘but for’ rule which simply excluded any confession which would not have been obtained but for the defendant’s unlawful arrest. The Supreme Court rejected such a rule, however, because it recognized some persons may decide to confess as an act of free will unaffected by the illegality of their arrest. [Citation.] As Justice Powell pointed out in his concurring opinion, ‘... the police normally will not make an illegal arrest in the hope of eventually obtaining such a truly volunteered statement.’ [Citation.] Instead of a per se or ‘but for’ rule, ‘[t]he question whether a confession is the product of a free will... must be answered on the facts of each case.’ [Citation.]... [¶]... ‘The Miranda warnings are an important factor, ’ the court acknowledged, ‘[b]ut they are not the only factor to be considered’ because ‘[t]hey cannot assure in every case that the Fourth Amendment violation has not been exploited.’ [Citation.] Therefore, in addition to the Miranda warning, a court should consider ‘[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances [and] particularly, the purpose and flagrancy of the official misconduct[.]’ [Citations.]” (Gonzalez, supra, 64 Cal.App.4th at pp. 440-441; see also Jenkins, supra, 122 Cal.App.4th at pp. 1178-1179.)
As the trial court correctly observed in this case, the “first factor” identified in Brown was clearly satisfied here because appellant was promptly given a Miranda warning before he was questioned by Inspectors Toomey and Philpott. We also agree with that court that the second factor does not demonstrate much by way of “attenuating circumstances, ” because it was only a couple of hours between the time Officer Costello detained and handcuffed appellant and when appellant was interviewed by Inspectors Toomey and Philpott.
But the trial court was, we believe, quite correct in finding the third and fourth Brown factors conclusive in establishing such an attenuation. It explicitly listed the many “intervening circumstances” (Brown, supra, 422 U.S. at pp. 603-604) which occurred, i.e., (1) the removal of the handcuffs from appellant; (2) Toomey’s specific advice to appellant, which the latter acknowledged, that he was not under arrest; (3) appellant’s agreement with Inspector Toomey’s request to go to the other police station and discuss the death of West; (4) the threesome’s travel in an unmarked car with appellant alone in the rear seat; (5) an enroute coffee stop in which appellant was invited to join; and (6) appellant’s two statements that he had heard about the police inquiry into the death of West and had been intending to come to the police and talk to them about the same, but had been “procrastinating.”
All of these circumstances, especially when combined, clearly satisfy the third Brown factor and also the penultimate sentence in the Brown Court’s summary of its four factors: “The voluntariness of the statement is a threshold requirement.” (Brown, supra, 422 U.S.at p. 604.)
Regarding the fourth and final Brown factor, i.e., “particularly, the purpose and flagrancy of the official misconduct” (Brown, supra, 422 U.S. at p. 604, emphasis added), we agree with the trial court that it was “not so flagrant as to overcome the other factors pointing to the voluntariness.”
However, we would go a bit further than the trial court. We believe the record establishes that the police conduct was not particularly flagrant at all, because the record discloses some additional factors which rather clearly dissipated much of any “flagrancy.” Specifically, Officer Costello did not just stop appellant at random as he walked down Hyde Street from his visit to the Geary Street liquor store. Rather, Costello was responding to an “A-Priority call... phoned in by a local liquor store or convenience store owner and he said there was a wanted person in his store.” That owner had called the police because of a “police bulletin” given to him earlier by the police, a bulletin that included a picture of appellant. Costello went to the location and saw the store owner pointing out appellant, who was then at the corner of Hyde and O’Farrell Streets, pat-searched and handcuffed him, and placed him in his police car. Then, presumably only a matter of minutes after getting the “A-Priority call” triggered by the store owner, Costello verified via his police car computer that, indeed, “Mr. Crandall was to be held for a homicide.”
As the trial court correctly observed at the end of the suppression hearing, there had been no formal arrest warrant issued for appellant, but Inspectors Toomey and D’Amico had “disseminated” the police bulletin in the area after their “investigation into the death of Guy West.” In short, although, under the circumstances, Officer Costello should not have handcuffed appellant but, instead, asked him to come to the station for the interview with the two inspectors, there was clearly minimal police misconduct in Costello’s initial treatment of appellant.
We conclude that a careful examination of, especially, the third and fourth Brown factors, i.e., the “presence of intervening circumstances [citation] and, particularly, the purpose and flagrancy of the official misconduct” (Brown, supra, 422 U.S. at pp. 603-604) show that the trial court was correct in both (1) its factual findings regarding appellant’s motion to suppress and (2) its conclusion not to suppress appellant’s August 3, 2006, confession to Inspectors Toomey and Philpott.
B. There was prejudicial jury misconduct.
Appellant contends the trial court erred in denying his motion for a new trial, a motion based on alleged jury misconduct.
1. The record regarding the jury’s deliberations.
Before discussing the law and our conclusions on this subject, some specific factual background of the jury’s deliberations is necessary.
The jury heard the trial court’s instructions and counsels’ closing arguments on June 14, 2007. It then retired and commenced deliberations in mid-afternoon of that day, but apparently only for less than an hour. Its deliberations resumed on Friday, June 15, and then continued the following week. A verdict of guilty of second degree murder was rendered at mid-afternoon on Thursday, June 21. Thus, the jury deliberated for five full days, during which its members submitted numerous written questions to the court, and several individual jurors had in-court conferences with the trial judge.
It is clear from this record that the jury did not have an easy time deciding whether appellant was guilty of second degree murder or voluntary manslaughter. Additionally, two jurors made it clear to the court that they had personal travel plans which made it imperative-at least to them-that the trial conclude on or before a particular date. Finally, by way of support for his new trial motion, appellant supplied the trial court with declarations from three jurors suggesting that, during their deliberations, some jurors mentioned appellant’s failure to testify. We will, hereafter, describe in more detail, these various jury-related problems.
Shortly after deliberations began on June 14, the jury sent a note requesting a “clear definition” of first degree murder, second degree murder, manslaughter and provocation. It also requested additional copies of the jury instructions. The court responded by informing the jury of which of the instructions already provided it addressed these issues.
The next day, June 15, the jury requested to view the tape of appellant’s confession, and also requested a definition of the word “act” as regards implied malice. The court similarly responded to these requests.
After the ensuing weekend, on Monday, June 18, a juror called in sick and was replaced by an alternate juror; the jury was, of course, instructed that it must begin its deliberations anew.
Also that day, the court first heard from the two “travel plan” jurors, but addressed and-at least temporarily anyway-resolved their concerns. Specifically, juror No. 12 had a private discussion with the court (and both counsel) concerning her plans to travel to Greece-on a ticket already bought and paid for-on June 27. The court reassured her that “[y]ou will be able to keep your trip” and this appeared to satisfy-at least for the moment-juror No. 12.
But, the same day, juror No. 9 advised the court-also in a private discussion with the judge and counsel-that she, too, had travel plans, specifically was scheduled to go to New York for her sister’s wedding the following day, i.e., June 19, on a 3:00 p.m. flight, although the wedding was not until the following weekend. Appellant’s counsel moved to replace that juror, but the prosecution objected, and the court ruled that juror No. 9 would “have to stay with the jury” and ordered her to appear for continued deliberations the following day. She did, and the jury continued its deliberations without further incident on June 19.
On the following day, Wednesday, June 20, the court reassembled the jury and addressed it. It specifically noted that it had received a note from the foreperson, who had requested the conference because of the attitude of two jurors who, he commented, were apparently pushing to end the deliberations and were, in the process “bullying the other jurors and pushing people to make decisions that they are not ready to make....”
As a consequence of this communication, the trial court spent some time admonishing the jury that its deliberations were, as a matter of course, time-consuming and not easy. The court admonished the jurors to behave courteously to each other in the process of their continued deliberations. The court then polled the jurors as to whether they believed further deliberations would be useful. Six replied affirmatively, three negatively, and three expressed no opinion. The court then instructed the jury to continue deliberating.
There then ensued no fewer than five separate discussions with members of the jury. Juror No. 12, who planned an “imminent trip to Greece, ” complained of seemingly increased anxiety, and also stated that “I feel completely isolated.” The court (over defense counsel’s objections) instructed her to continue to deliberate, which she agreed to do.
Next, juror No. 6 complained of headaches and backaches, and also stated that there were many different points of view amongst the jurors, that it seemed difficult if not impossible to change anyone’s mind, and that the deliberations were thus becoming repetitious. Again over defense counsel’s objections, the court found that the juror was willing to continue deliberating, and ordered her to do so.
Next, the court had an individual discussion with juror No. 3, who stated that, since the court’s earlier admonition that day to the whole jury, “there has been a positive change in terms of attitude which I think can help us move forward in our deliberations.”
Fourth, the court heard from juror No. 9, who planned to attend a wedding in New York, and who advised the court and counsel that she had in fact been able to change her travel plans to New York, so as to leave the next day, Thursday, June 21, at 11:55 p.m. She stated that she would be willing to deliberate until 4:30 p.m. on that day, i.e., the following day.
Fifth and finally, the court heard from juror No. 11, who wished to attend school; the court sent him a note instructing him to continue deliberating.
The following day, Thursday, June 21-which turned out to be the final day of jury deliberations and the trial-the court had yet another individual colloquy with juror No. 12. This was triggered because the court had received a note in which an attorney stated that she had allegedly been seeking advice (over her cell phone outside the courthouse) regarding “how to get out of her jury service.” But in her colloquy with the court, she denied any misconduct, and stated that she believed at this point that she may well have to reschedule her trip. The trial court responded that it was, and had been, aware of her planned trip to Greece, and “you can count on that.” The juror replied: “Thank you so much. That’s all I needed to hear.”
A short time later, the jury announced it had reached a verdict; and it had, finding appellant guilty of second degree murder.
After the trial, appellant filed a motion for a new trial, which was accompanied by three declarations from former juror Nos. 1, 5, and 10. Although all three declarations contain statements allegedly related to the real or presumed outlooks of several jurors, these of course are inadmissible under Evidence Code section 1150, and those statements will not be discussed further below. However, the three declarations did include a substantial amount of admissible material regarding the statements of various jurors, including those of the foreperson on the final day of deliberations. We will discuss this material further below.
The trial court also received two notes supplied the court by the foreperson of the jury and, as noted above, a declaration from an attorney who had overheard one of the jurors talking on a cell phone during a recess concerning “some commitments [she had] for the following week.”
2. The trial court erred in denying appellant’s new trial motion.
Appellant contends the trial court erred in denying his motion for a new trial because the declarations submitted in support of that motion demonstrated misconduct in four different respects, i.e., (a) the jurors’ discussions of appellant’s failure to testify, (b) the jury’s alleged failure to deliberate, (c) the alleged injection of artificial time constraints because of the travel plans of juror Nos. 9 and 12, and (d) the cumulative effect of these factors. Particularly because of the cumulative effect of factors (a) and (c), we agree with appellant that there was prejudicial jury misconduct and that, as a consequence, the court erred in denying appellant’s motion for a new trial.
First of all, the relevant law regarding the jury’s discussion of appellant’s failure to testify is important. It was most recently summarized by our Supreme Court in People v. Leonard (2007) 40 Cal.4th 1370, 1424-1425 (Leonard), where the court stated: “The Fifth Amendment to the federal Constitution provides that no person “ ‘shall be compelled in any criminal case to be a witness against himself.’ ” A defendant may invoke this right at the penalty phase of a capital case, even though the risk of self-incrimination is diminished because the defendant has already been convicted. [Citations.] The right not to testify would be vitiated if the jury could draw adverse inferences from a defendant’s failure to testify. Thus, the Fifth Amendment entitles a criminal defendant, upon request, to an instruction that will “ ‘minimize the danger that the jury will give evidentiary weight to a defendant’s failure to testify.’ ” [Citation.] [¶] Here, by violating the trial court’s instruction not to discuss defendant’s failure to testify, the jury committed misconduct. [Citations.] This misconduct gives rise to a presumption of prejudice, which ‘may be rebutted... by a reviewing court’s determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual harm.’ [Citations.]” The court went on to hold that, in reviewing a ruling by a trial court as to whether the presumption of prejudice has been rebutted, “we apply our independent judgment. [Citation.]” (See also People v. Loker (2008) 44 Cal.4th 691, 749 (Loker); People v. Cissna (2010) 182 Cal.App.4th 1105, 1115-1117 (Cissna); People v. Hord (1993) 15 Cal.App.4th 711, 725-726 (Hord); People v. Perez (1992) 4 Cal.App.4th 893, 908.)
Here, the trial court correctly noted that the discussion among the jurors of appellant’s failure to testify was presumptively prejudicial, but that the prejudice had been rebutted by the other evidence presented by the prosecution, e.g., the recorded statements to the police made by appellant. Exercising, as the applicable standard of review permits us to do, our “independent judgment, ” we disagree, particularly in view of (a) the discussions within the jury of appellant’s failure to testify, (b) the substantial division among the jurors continuing until less than an hour before they reached their verdict, (c) the timing of the jury’s deliberations, particularly considered in conjunction with the pressures asserted by the two “travelling jurors, ” and (d) comments from the jury foreperson regarding the need to reach a verdict. We will next discuss the evidence in the record regarding these factors.
First, the three post trial declarations each represent that there was substantial discussion within the jury about appellant’s failure to testify. Juror No. 5 stated in her declaration that the juror who had the planned trip to Greece, “repeatedly discussed the fact that Mr. Crandall failed to testify at trial.” Juror No. 10 stated in his declaration that “several jurors, including [naming three, including the foreperson] discussed the defendant’s failure to testify. For example [naming the juror travelling to Greece] said, “ ‘If he really got to his breaking point, he would have gotten on the stand and explained it more.” Finally, juror No. 1 stated in his declaration that “[s]everal jurors repeatedly mentioned during deliberations that Mr. Crandall failed to testify in his own behalf at trial and that they held it against him.”
Second, on June 20, i.e., five days after beginning its deliberations and the day before the jury reached its verdict, the foreperson sent a note to the court reading as follows: “Judge, we have taken a vote and this is where it stands: manslaughter: 5 vote yes; murder 2: 7 vote yes.” Per two of the three post-trial juror declarations, this remained the vote as of 2:30 p.m. on the final day of trial, June 21. Nonetheless, the jury returned a unanimous verdict finding appellant guilty of murder in the second degree at 3:27 p.m. on that day, i.e., less than one hour later.
Third, both the three post trial declarations and other material in the record are pertinent regarding the travel plans of juror Nos. 9 and 12, respectively the “New York trip” and “Greece trip” jurors. For example, juror No. 1 stated in his post trial declaration that the latter “kept bringing up personal issues [including] her travel plans. [She] also kept bringing up [juror No. 9’s] trip to New York. She kept pressuring us to make a decision so that [juror No. 9] could make her flight.”
Juror No. 10 stated to the same effect, i.e., “[Juror No. 12] also spoke frequently about her plans to travel to Greece.... Specifically, she said she needed deliberations to end quickly so she could travel to Greece the following week. On June 18, 2007, she actually pulled out her airplane tickets and, later in the day, said that if deliberations continued, ‘I might have to cancel my trip.’ This juror’s declaration also noted the similar pressure coming from juror No. 9 regarding her New York trip, which she told the other jurors would commence that very evening. Per Juror No. 10: “On Thursday, June 21, 2007, at approximately 2:30 p.m., the jury was still split (7 for ‘Murder 2’ and 5 for ‘Manslaughter’). At that time, [juror No. 9] repeated that she had to fly to New York with her mother that evening to attend the wedding and stated, ‘My mother takes heart medication and she is having a tough time with this.’ She suggested that her mother’s health would be jeopardized if they missed the flight. At that time both [juror No. 12 and the foreperson] also focused on [juror No. 9’s] personal interests and stated, ‘we have to decide now because [juror No. 9] has to go to New York.’ ”
The post trial declaration of juror No. 5 was substantially to the same effect. And that juror specifically confirmed the point made by juror No. 10 regarding the foreperson’s pressure to reach a verdict that day, asserting that the foreperson said, on the afternoon of June 21: “ ‘This is it-we are making a decision today.’ ”
If all we had before us on the subject of the “travel pressure” were these three post trial declarations, we might be a bit reticent about relying only on them regarding that subject. But the public record confirms that these two jurors did indeedhave these travel plans, and repeatedly brought them to the attention of the trial judge. As we discussed above (see pp. 12-14, ante), the court had direct and personal discussions with both juror Nos. 9 and 12 regarding their respective, and to them clearly very pressing, travel plans. As noted previously, on Monday, June 18, the court and counsel had a discussion with juror No. 12 regarding her plans to travel to Greece. Later, there were other discussions with the same juror regarding her “panicky” feelings about the case and the deliberations generally.
But perhaps the most relevant point is that the public record confirms that juror No. 9 had, indeed, postponed her New York trip from June 19 to the evening of June 21, i.e., was scheduled to fly out of San Francisco the very evening of what turned out to be the jury’s final day of deliberation. She specifically informed the court and counsel on June 20 that she could deliberate until 4:30 p.m. on the following day, but could not stay in the jury room any longer, as she could not personally afford to miss her already once-rescheduled flight. These portions of the public record regarding the jury’s deliberations and the problems encountered therein tend, rather clearly, to confirm the assertions made in the three post trial juror declarations.
The combination of the assertions contained in the post trial declarations and their confirmation via the public record leads us to conclude, as we may via our “independent judgment” (see Leonard, supra, 40 Cal.4th at p. 1425), that the presumption of prejudice injected into this case by the jurors’ discussion of appellant’s failure to testify was, in fact, not rebutted by the record.
In this respect, our case is somewhat similar to a recent (so recent it was not cited in any of the briefs provided us) decision by our colleagues in the Fourth District, namely, Cissna, supra, 182 Cal.App.4th 1105. There, the appellate court reversed a judgment finding the defendant guilty of sexual abuse of a minor (Pen. Code § 288.5, subd. (a)) because one of the jurors had engaged in regular, indeed daily, discussions with a personal non-juror friend concerning the ongoing trial. Those discussions specifically included the fact that the defendant did not testify. (Cissna at pp. 1114-1115 & 1120-1121.) The trial court, upon being presented with post trial declarations from both the juror and his friend, denied the defendant’s motion for a new trial. Division One of the Fourth District reversed, finding that the presumption of prejudice arising from the juror’s continual conversations with a non-juror had not been rebutted and, thus, the defendant was entitled to a new trial. (See id. at pp. 1117-1123.)
Some of the discussion of the several precedents discussed above and their application-or non-application-to the facts of Cissna are worthy of repetition here. Thus, regarding the discussions between the juror and the non-juror regarding the defendant’s not testifying, the court ruled: “[T]he fact that Juror D. and G. discussed the import of defendant’s decision not to testify demonstrates that this outside influence was directed to a critical issue and one that was potentially highly detrimental to the defense. As is true in all criminal trials, the jury was instructed that it is not permitted to consider or discuss the fact that defendant exercised his constitutional right not to testify. (See CALCRIM No. 355.) This rule is designed to prevent the jury from drawing adverse inferences against the defendant in violation of the constitutional right not to incriminate oneself. [Citation.] In some cases the courts have found comments about a defendant’s failure to testify to be nonprejudicial misconduct. [Citing and summarizing Hord, Leonard and Loker.] [¶] Unlike the situations in Hord, Leonard and Loker, the circumstances of this case show the discussion of defendant’s decision not to testify carried a high potential of prejudice to the defense. In the absence of physical evidence, sexual molestation cases inevitably turn largely on the jury’s evaluation of the victim’s credibility. A defendant is entitled to have all 12 jurors make this evaluation without considering whether the defendant took the stand to deny the accusations. The defendant’s silence should not be a factor adding to any inferences that the victim is telling the truth. The fact that Juror D. discussed defendant’s silence with G. reflects that Juror D. considered this factor. Further, the fact that Juror D. repeatedly ignored clear instructions not to discuss the case supports that he equally ignored the court’s instruction not to factor in defendant’s silence when deciding the case. This improper influence obviated defendant’s constitutional right not to have his silence play any role in his conviction.” (Cissna, supra, 182 Cal.App.4th at pp. 1120-1121, fns. omitted.)
Just so here. Not only was the prejudice inherent in the jurors’ discussion of appellant’s failure to testify not rebutted by any evidence of the brief, casual or non-consequential nature of that discussion, it was emphasized by the post trial declarations of the three jurors that this factor was apparently “repeatedly” mentioned during the five plus days of the jury’s deliberations.
This jury misconduct was also compounded by the pressure being put on the jury by, in particular, the fact that juror No. 9 was destined to conclude her service at 4:30 p.m. on June 21 in order to be able to catch her and her mother’s 11:55 p.m. flight to New York that evening. The jury, apparently still then divided seven to five, obviously knew that, if such happened, an alternate juror would be brought in-as one already had been on Monday, June 18, to replace an ill juror (see p. 12, ante). As one of the post trial declarations states, “this would make us have to start the deliberations all over again from the beginning.” All of which suggests rather strongly that this situation led to the statement of the foreperson, during the last hour of deliberations on June 21, that “we are making a decision today.”
In light of the combination of these factors, we conclude that the prejudicial effect of the discussion of appellant’s failure to testify was not rebutted, and that appellant is entitled to a new trial.
IV. DISPOSITION
The judgment is reversed and the matter remanded to the trial court with instructions to grant appellant’s motion for a new trial.
I concur: Richman, J.
Concurring opinion of Kline, P.J.
I fully agree there was prejudicial juror misconduct in this case and defendant’s motion for a new trial should therefore have been granted.
I write separately to point out the extent to which the misconduct was the result of and exacerbated by related factors the majority fails to mention: the questionable instruction given by the court, and the district attorney’s exploitation of that instruction. As will be seen, the effect of the instruction on jurors made it even more imperative for the trial court to grant appellant a new trial than would otherwise have been the case.
After the district attorney asked for the instruction then set forth in CALCRIM No. 570, defense counsel objected to the portion telling the jury that, “[i]n deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.” Counsel, who justifiably feared that the instruction might easily be misinterpreted by jurors as requiring them to decide whether the provocation would caused a reasonable person to kill, asked that it be modified so that the jury must instead decide whether the provocation was “sufficient to cause an ordinary person of average disposition to act rashly and without deliberation.” The court overruled the objection and refused to make the requested modification.
The problem with the instruction is described in People v. Najera (2006) 138 Cal.App.4th 212, 223-224 (Najera). As stated in Najera, “[a]n unlawful homicide is upon ‘ “a sudden quarrel or heat of passion” ’ if the killer’s reason was obscured by a ‘ “provocation” ’ sufficient to cause a reasonable person of average disposition to act rashly and without deliberation. [Citation.] The focus is on the provocation-the surrounding circumstances-and whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion.” (Id. at p. 223, italics added.) The prosecutor in Najera told the jury that the issue it had to decide was “[w]ould a reasonable person do what the defendant did? Would a reasonable person be so aroused as to kill somebody? That’s the standard.” (Ibid.) The Najera court found this statement clearly erroneous.
The analysis in Najera appears to have induced the Judicial Council to eliminate from CALCRIM No. 570 the language challenged in this case. A report to the Judicial Council from the Advisory Committee on Criminal Jury Instructions dated October 10, 2008, recommended this change “because of concern that the original draft [of CALCRIM No. 570] could raise doubt in a juror’s mind about whether the state of mind required for voluntary manslaughter was that an average person similarly situated would have been provoked to kill, or whether provocation resulting in passion rather than judgment was sufficient.” The revision “clarified that the latter is required.” (Italics added.) The version of CALCRIM No. 570 given in this case has not been used by California courts since December 2008.
The Advisory Committee’s fear was realized in this case.
Although we need not address the issue, I believe we would have to reverse the judgment in this case for instructional error even if there had been no juror misconduct. The ambiguity in the instruction is clear from the case law (People v. Najera, supra, 138 Cal.App.4th at pp. 223-224; see also People v. Morgan (2007) 42 Cal.4th 593, 612, and People v. Green (1980) 27 Cal.3d 1, 71), and the jury’s reliance on the instruction and the prejudice appellant suffered is clear from the declarations of jurors.
Taking advantage of the trial court’s refusal to modify the instruction so as to avoid the problem described in Najera, the district attorney emphasized during closing argument that there was insufficient evidence of provocation because “there’s nothing in [defendant’s] confession to explain a provocation that would have taken a person of average sensibilities to the point of wanting to murder somebody.” Defense counsel immediately objected but to no avail, and his repeated request for a modification of the instruction was again denied.
The significance of the dubious instruction and the emphasis placed upon it by the district attorney’s emphasis was quickly made clear. About 20 minutes after it commenced its deliberations, the jury requested “a clear definition” of “provocation.” In response, the court simply referred jurors back to the instruction that was obviously the cause of their confusion. Three days later, the jury announced that it was deadlocked, which set the stage for the misconduct the majority describes. The declarations submitted by three jurors show not just the extent of the misconduct-including a discussion of appellant’s failure to take the stand, during which one juror argued that if he had been genuinely provoked appellant would have testified-but also the importance jurors attached to the ambiguous provocation instruction and the district attorney’s reliance on it. The declarations describe this issue as the “keystone” and “central focus” of the jury’s deliberations. For example, one declarant states that “jurors repeatedly discussed their understanding of the level of provocation necessary to find for manslaughter. Almost all of the jurors... more or less repeated the statement of Ms. Garcia [the district attorney] in her closing argument that the question to be answered was: ‘Would a person of average disposition have killed someone under these circumstances?’ All the jurors who argued for second degree murder continuously said that there was not enough provocation to make someone kill under the circumstances.” The author of this declaration stated that she “would never have voted guilty to second degree murder if I had known that the correct standard is whether the person of average disposition would have acted rashly and without judgment under the circumstances.”
The declarations show not just the connection between the district attorney’s reliance upon the questionable instruction and the jury misconduct, but also the prejudicial effect of that misconduct. The declarations thus present an additional reason denial of the motion for a new trial was error.