Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM025560
BUTZ, J.A jury found defendant Anthony Dean Dixon III guilty of first degree murder (Pen. Code, § 187, subd. (a)) and sustained an enhancement for personal use of a firearm (§ 12022.53, subd. (d)). The court sentenced defendant to a term of 50 years to life.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends it was an abuse of discretion for the trial court to deny his motion for an evidentiary hearing or new trial based on allegations of juror misconduct, and he received ineffective assistance of counsel in presenting the motions. We shall affirm the judgment.
FACTUAL BACKGROUND
On September 6, 2006, at around 7:13 a.m., two school-aged children discovered the body of John Dills. Dills was dead, having sustained three gunshot wounds to the upper torso and chest, two wounds to the left ear area, a wound on the left temple, and a wound on the outer part of the left hand.
Freeman Kellison knew defendant since they were children. In September 2006, defendant, Kellison, and Dills worked on three-wheelers and took drugs together. Defendant often stayed at Kellison’s home during this time.
Defendant and Dills stayed with Kellison at his grandmother’s house on the evening of September 4, 2006. Kellison was afraid that night and borrowed a.22-caliber handgun from his grandmother. Kellison was uncomfortable with handguns, so he gave the weapon to defendant, a hunter familiar with guns. Dills was afraid for his safety, constantly expressing his desire to get out of California. Kellison offered to help by buying him a bus ticket.
The following day, the trio picked up some of Dills’s clothing from the home where his father was staying. They eventually returned to Kellison’s grandmother’s house, where Kellison and defendant obtained her permission to let Dills sleep there that night. However, Dills had fallen asleep in the car, where he was left for the night.
Kellison got his grandmother’s handgun again and gave it to defendant. Defendant told Kellison he suspected Dills of being a child molester, and the two discussed whether this was why Dills wanted to leave California. Defendant suggested killing Dills as a way to take care of this situation. Kellison said this was none of their business, but defendant retorted, “what if [Dills] raped your grandmother?”
Kellison decided to go to the hospital to treat a spider bite on his knee. He and defendant got into the car, which still contained the sleeping Dills. However, Kellison drove in the opposite direction as defendant directed him to a place where they could buy marijuana. The person with the marijuana was not home, so Kellison drove back towards the hospital.
After Dills woke up in the backseat, defendant asked him to reach down and pick up a bag of defendant’s belongings off the floor. Defendant then turned around and shot Dills twice, causing him to slump down. Kellison slowed the car down, but defendant shot Dills again before the car stopped.
Once the car stopped, defendant and Kellison got out. Kellison pulled Dills’s body out of the car, laid his own shirt over the torso, and dumped Dills on the side of the road before driving back to his grandmother’s house with defendant. He also took the gun from defendant and put it away.
Kellison was serving a prison term after pleading guilty to a manslaughter charge, and was scheduled to be released about a year after the date of his testimony. He had previously been arrested for stealing the ingredients for methamphetamine from a K-Mart; he also had a recipe for methamphetamine in his possession when he was arrested.
Kellison’s grandmother testified she owned the.22-caliber Ruger semiautomatic pistol used to kill Dills. The pistol was found in a search of her house, which also discovered a bloody wig folded over a citation issued to Dills and an empty box for.22-caliber rounds.
Defendant was interviewed by a Butte County Sheriff’s deputy. He admitted shooting Dills, but claimed it was an accident. Defendant said the first shot went off accidentally while he was playing with the gun and the car hit a bump. Dills was shot in the neck and was suffering, so defendant shot Dills many times, like a hunter putting a wounded animal out of its misery. He admitted shooting Dills four or five times, including once in the head.
Defendant did not like Dills; he thought Dills was a thief and a child molester. When defendant got into the car, he thought Dills might die. Defendant admitted using methamphetamine at the time of the shooting.
Peter Barnett testified as an expert criminalist for the defense. He thought that the position of the bloodstain in Kellison’s car and the direction of the gunshots on the body indicated that Dills was shot from the driver’s side rather than from the passenger side of the front seat. However, he admitted it was possible that Dills was shot from the passenger side and slumped over before being shot again.
DISCUSSION
I. Juror Misconduct
On October 6, 2008, almost two months after the verdict and the day before sentencing, defendant filed a motion for new trial based on juror misconduct. Attached to the motion was the declaration of Juror C.S., which stated: “During the course of our deliberations, it became an issue that the defendant, Mr. Dixon, had not testified on his own behalf. Several jurors discussed Mr. Dixon’s failure to testify and took it into consideration during our deliberations. [¶] Additionally, we had a difficult time putting the facts of the case together. It was unclear to us what had really happened. We thought there may have been a second gun and, perhaps, another shooter.”
The motion contained two exhibits. The first was a newspaper article relating that the jury foreman thought defendant’s videotaped confession was pivotal, and quoted the foreman as saying, “The fact... that he did not take the stand and say anything differently from his confession was also very important.” The other exhibit was a statement from a defense investigator, Jason Reisinger, relating his conversation with Juror C.H., who told him “that some alternative theories of the crime were discussed that had no basis in the evidence” and “that jurors discussed the fact that Mr. Dixon did not testify on his own behalf at trial during their deliberations.” Reisinger asked Juror C.H. to sign a declaration regarding the conversation, but the juror declined.
Defendant’s motion argued that the jurors violated his Fifth Amendment right not to testify by considering his failure to take the stand, and this misconduct was prejudicial, mandating a new trial. During argument on the motion, defense counsel also argued that if the court was not ready to grant the motion, it could grant an extension so the prosecution and the defense could examine the remaining jurors.
The court struck the defense investigator’s statements and the newspaper article as hearsay. It found the declaration of Juror C.S. did not satisfy Evidence Code section 1150 except for the statement that some jurors discussed defendant’s failure to testify. Regarding the jury’s alleged discussion of defendant’s failure to testify, the court stated, “There is no evidence to show that those discussions were in any way extensive, that they in any way were prejudicial to the defendant, and for that reason the motion is denied.”
On appeal, defendant contends that the trial court abused its discretion because the misconduct related in Juror C.S.’s declaration was prejudicial and the allegations in the newspaper article and by the defense investigator raised an inference of misconduct which warranted an evidentiary hearing. He is mistaken.
“When a party seeks a new trial based upon jury misconduct, a court must undertake a three-step inquiry. The court must first determine whether the affidavits supporting the motion are admissible under Evidence Code section 1150, subdivision (a).” (People v. Von Villas (1992) 11 Cal.App.4th 175, 255.) “If the evidence is admissible, the court must then consider whether the facts establish misconduct. [Citation.] Finally, assuming misconduct, the court must determine whether the misconduct was prejudicial.” (Ibid.) We will not disturb a trial court’s denial of a motion for new trial unless the trial court unmistakably abused its discretion. (People v. Cox (1991) 53 Cal.3d 618, 694, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
“‘[W]hen a criminal defendant moves for a new trial based on allegations of jury misconduct, the trial court has discretion to conduct an evidentiary hearing to determine the truth of the allegations. We stress, however, that the defendant is not entitled to such a hearing as a matter of right. Rather, such a hearing should be held only when the trial court, in its discretion, concludes that an evidentiary hearing is necessary to resolve material, disputed issues of fact.’ [Citation.] Also, a hearing ‘should be only held when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. Even upon such a showing, an evidentiary hearing will generally be unnecessary unless the parties’ evidence presents a material conflict that can only be resolved at such a hearing.’” (People v. Hardy (1992) 2 Cal.4th 86, 174, fn. omitted.)
The trial court correctly dismissed without further hearing the newspaper article and the defense investigator’s statement. “Normally, hearsay is not sufficient to trigger the court’s duty to make further inquiries into a claim of juror misconduct.” (People v. Hayes (1999) 21 Cal.4th 1211, 1256.) In Hayes, a defense investigator and defense counsel submitted unsworn statements that a juror told them some of the jurors had read newspaper accounts of the trial proceedings. (Id. at p. 1253.) Hayes presented no statement by the juror herself. (Id. at p. 1256.) The trial court denied the motion for a new trial without further inquiry into the claim of misconduct. (Id. at p. 1255.) The Supreme Court found no abuse of discretion in failing to conduct an evidentiary hearing. (Id. at p. 1256.)
In People v. Carter (2003) 30 Cal.4th 1166, the Supreme Court repeated that hearsay is not sufficient to trigger the court’s duty to conduct an evidentiary hearing and, revisiting its prior holding in Hayes, reminded us: “We found no abuse of discretion in the trial court’s denial of the new trial motion without a hearing, noting that the court was justified in according little, if any, credence to the hearsay assertions the juror would not verify.” (Id. at p. 1217.) The Supreme Court also found no abuse of discretion in the denial of the new trial motion without an evidentiary hearing. (Ibid.) Since the allegations in both the newspaper article and the defense investigator’s statement were hearsay, the trial court was under no obligation to investigate them further before denying the new trial motion.
The trial court’s analysis of Juror C.S.’s declaration was also correct. Evidence Code section 1150 bars consideration of evidence of a juror’s thought process in a motion for new trial. (People v. Steele (2002) 27 Cal.4th 1230, 1263-1264.) The trial court properly applied this provision and dismissed the juror’s allegations that the jury considered theories not supported by the evidence and had difficulty putting together the facts of the case.
Juror C.S.’s allegation that several jurors discussed defendant’s failure to testify is another matter. “[E]vidence of a jury discussion on an improper topic [is] admissible as an ‘overt act’ provided the evidence is not directed at the subjective reasoning processes of the individual juror.” (People v. Perez (1992) 4 Cal.App.4th 893, 907 (Perez).) A juror’s declaration that the jury discussed defendant’s failure to testify supports a finding of misconduct. (People v. Leonard (2007) 40 Cal.4th 1370, 1424-1425 (Leonard); People v. Hord (1993) 15 Cal.App.4th 711, 721, 725 (Hord).)
The trial court did not dismiss this allegation out of hand, instead finding that the alleged misconduct was not prejudicial. Whether juror misconduct is prejudicial is a mixed question of fact and law subject to the independent determination of the appellate court. (Leonard, supra, 40 Cal.4th at p. 1425.) “Although misconduct raises the presumption of prejudice ‘[t]he 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 harm.’” (Hord, supra, 15 Cal.App.4th at p. 725.)
Our Supreme Court has recognized the difficulty of controlling the minds and voices of 12 jurors who are humans rather than automatons: “Not all comments by all jurors at all times will be logical, or even rational, or, strictly speaking, correct. But such comments cannot impeach a unanimous verdict; a jury verdict is not so fragile. ‘... The jury system is an institution that is legally fundamental but also fundamentally human. Jurors bring to their deliberations knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience. That they do so is one of the strengths of the jury system. It is also one of its weaknesses: it has the potential to undermine determinations that should be made exclusively on the evidence introduced by the parties and the instructions given by the court. Such a weakness, however, must be tolerated. “[I]t is an impossible standard to require... [the jury] to be a laboratory, completely sterilized and freed from any external factors.” [Citation.] Moreover, under that “standard” few verdicts would be proof against challenge.’” (People v. Riel (2000) 22 Cal.4th 1153, 1219.)
The allegation in Juror C.S.’s declaration does not state that the jurors considered defendant’s failure to testify as evidence of guilt, only that some jurors discussed the matter and took it into consideration. “Transitory comments of wonderment and curiosity, although misconduct, are normally innocuous, particularly when a comment stands alone without any further discussion.” (Hord, supra, 15 Cal.App.4th at pp. 727-728.)
The instant case is distinguished from Perez, supra, 4 Cal.App.4th 893, where defense counsel unsuccessfully moved for funding to investigate possible juror misconduct based on a juror’s statement that the jury based its decision of guilt on the fact that the defendant did not testify and that jurors mentioned this fact during deliberations. (Id. at p. 905.) The trial court “‘assume[d] for the sake of argument that all 12 jurors would say that that discussion... took place, ’” but the court believed such statements would be inadmissible. (Id. at p. 906.) The trial court denied a motion for new trial. (Ibid.) The appellate court vacated the judgment and remanded for further proceedings, stating the trial court envisioned the jury had explicitly or implicitly agreed to disregard the court’s express instruction, and evidence of such an agreement would be admissible to impeach the verdict under Evidence Code section 1150 and would constitute jury misconduct. (Id. at p. 908.) The appellate court noted, however, the trial court should not assume what occurred but should put defendant to his proof. (Id. at p. 909.)
While the jurors discussed defendant’s failure to take the stand, there was no evidence of an explicit or implicit agreement to consider it as evidence of his guilt, which distinguishes Perez. (Hord, supra, 15 Cal.App.4th at p. 726.) “Where the misconduct is not ‘inherently likely’ to have affected the vote of any of the jurors, prejudice is not shown.” (Id. at p. 727.) Lacking any evidence that defendant’s failure to testify influenced the jury’s verdict, the trial court correctly concluded that defendant was not prejudiced by the misconduct.
II. Ineffective Assistance of Counsel
Defendant’s final contention is trial counsel was ineffective for failing to file the new trial motion earlier and for inadequately presenting the motion. We disagree.
“‘[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was “deficient” because his “representation fell below an objective standard of reasonableness... under prevailing professional norms.” [Citations.]... [Citation.] Prejudice is shown when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”’” (In re Avena (1996) 12 Cal.4th 694, 721.)
The relative lateness of the new trial motion was not a reason for its failure at trial or on appeal. Since defendant was not prejudiced by the timing of the motion, we reject his allegation that the late filing constituted ineffective assistance.
Defendant also argues that trial counsel had two options to better present his motion:
A.
Defendant claims counsel should have moved for disclosure of the jurors’ identifying information pursuant to Code of Civil Procedure section 237, relying on Juror C.S.’s declaration. However, nothing in the record indicates that defense counsel had problems interviewing jurors. Indeed, the new trial motion shows that the defense was able to contact at least two of the jurors, Juror C.S. and the jury foreman. Counsel also told the trial court that he had not addressed each juror, as several jurors contacted by the defense had not returned phone calls.
Defendant claims a motion to disclose would serve two functions: timely informing the court of juror misconduct and alerting “the court to the fact that counsel needed the assistance of the court to complete the investigation.” Neither reason justifies filing a motion to compel juror information when the defense can already contact jurors. A motion for continuance is a better vehicle for informing the court of the need for further investigation, and defense counsel already invited the court to assist it in contacting the jurors who had not returned the defense’s phone calls. As we have already determined, defendant’s allegations of juror misconduct were insufficient to warrant an evidentiary hearing. Likewise, a continuance for more investigation of these allegations would have been improper. “Counsel’s failure to make a futile or unmeritorious motion or request is not ineffective assistance.” (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.)
B.
Defendant also claims counsel was ineffective for not requesting in writing that the court hold an evidentiary hearing based on Juror C.S.’s allegation.
While counsel’s written motion asked only for a new trial, at argument counsel twice invited the court to hold an evidentiary hearing if it was not ready to order a new trial. As we have already discussed, the court was well within its discretion to deny the motion for an evidentiary hearing; a written motion would not have made the request any more compelling. Defendant was not prejudiced by counsel’s failure to include the request for an evidentiary hearing in the written motion, and we accordingly reject his claim.
III. Section 4019
The recent amendments to section 4019 do not entitle defendant to additional time credits, as he was committed in this case for first degree murder, a “serious” felony, and an enhancement for personal use of a firearm. (§ 4019, subds. (b)(2) & (c)(2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50; see § 1192.7, subd. (c)(1), (8).)
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J. HULL, J.