Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County Nos. RIF124637 & RIF108899. Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI Acting P. J.
The Riverside County District Attorney filed an information, in case No. RIF124637, charging defendant and appellant Lorenzo Jose Estrada with possession for sale of a controlled substance, methamphetamine, under Health and Safety Code section 11378. The information also alleged defendant had (1) three drug-related convictions under Health and Safety Code section 11370.2, subdivision (a); (2) five prior prison convictions under Penal Code section 667.5, subdivision (b); and (3) one prior strike conviction under sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1). The information further alleged that defendant committed the current offense while out on bail for a previous offense under Penal Code section 12022.1.
On March 8, 2006, a jury found defendant guilty of possession for sale of methamphetamine. Thereafter, the allegations of five prison priors, one prior strike, and a bail enhancement were found true.
The abstract of judgment in case No. RIF124637 incorrectly notes that defendant pled guilty to the charged offenses.
The trial court sentenced defendant to state prison for a total term of 11 years.
On September 29, 2006, in case No. RIF108899, defendant pled guilty to Penal Code section 496d, subdivision (a), and was sentenced to two years in state prison to run concurrent to the sentence imposed in case No. RIF124637.
Defendant appeals.
I
FACTUAL AND PROCEDURAL HISTORY
On June 30, 2005, Deputies George Reyes and Anthony Johnson were on patrol as members of a gang detail of the Riverside County Sheriff’s Department Special Enforcement Team. They were in an area of Moreno Valley known for a high level of drug activity and vehicle thefts. As the officers approached the corner of Eucalyptus Avenue and Liberty Street, they noticed a blue Toyota Corolla parked next to a vehicle that Deputy Reyes believed belonged to a person involved in local vehicle thefts. A vehicle check revealed that the registration on the vehicle was expired. Deputy Reyes observed James Silva standing outside the front passenger side door talking to defendant, who was still sitting in the passenger seat. Deputy Reyes approached Silva; Silva immediately informed the deputies that he was the driver of the vehicle and was on parole. Because of Silva’s parole status, Deputy Reyes conducted an immediate search of Silva’s person and vehicle.
Defendant got out of the vehicle as Deputy Reyes commenced his search of the vehicle. Deputy Reyes noticed that portion of the floorboard upholstery located between the passenger seat and the base of the doorway was raised several inches. He lifted up the raised carpet and saw a black cloth sunglass bag. Inside the bag, he found a clear sandwich bag containing a crystalline substance. Deputy Johnson performed a field test on the substance, which tested positive for methamphetamine. The deputies did not find a pipe used for smoking methamphetamine, scales, or drug transaction records. Because the methamphetamine was in a location within defendant’s reach, Deputy Reyes arrested defendant. Upon further analysis, the baggie was found to contain 5.41 grams of methamphetamine.
Based upon his experience, Deputy Reyes believed the amount of methamphetamine found was for sale. Further, the expert for the prosecution, Marc Bender, an investigator for the Special Investigations Bureau of the Riverside County Sheriff’s Department, determined that, based upon his training and experience, the amount of methamphetamine found is typically possessed for the purpose of sale.
After arresting defendant, Deputy Reyes took defendant to the police station and advised defendant of his rights under Miranda v. Arizona (1966) 384 U.S. 436. Defendant waived his Miranda rights and gave the following statement:
On June 30, 2005, defendant was in his apartment when Silva, an acquaintance, stopped by to asked defendant for help in fixing Silva’s vehicle. When defendant got into the car, Silva offered defendant a “fix,” or dose, of methamphetamine. After defendant “took a hit” from Silva’s pipe, they went to a bank, where they both got out of the car. They then left the bank and proceeded to the intersection of Eucalyptus Avenue and Liberty Street.
II
ANALYSIS
Defendant’s sole contention on appeal is that his conviction for possession of a controlled substance for sale in case No. RIF124637 should be modified to a conviction for simple possession of methamphetamine because the jury engaged in an improper experiment using materials not introduced into evidence.
A. Standard of Review
When a defendant raises a claim of jury misconduct, the reviewing court must conduct a de novo review to determine whether there was misconduct, and, if so, whether the misconduct prejudiced defendant. (People v. Cumpian (1991) 1 Cal.App.4th 307, 311; People v. Wisely (1990) 224 Cal.App.3d 939, 947.)
B. Background
Prior to deliberations, the trial court instructed the jury using Judicial Council of California Criminal Jury Instructions, CALCRIM No. 201, which admonished jurors from conducting any experiments in the jury deliberation room. After the jury rendered its verdict, counsel for both parties met with several members of the jury. One juror informed counsel that the jury poured sugar or sugar substitute onto a table in the deliberation room to visually estimate a gram. Neither counsel questioned that juror further. Moreover, no juror offered an explanation as to whether the pouring of the sugar influenced their determination of guilt. Additionally, the court bailiff informed counsel that he discovered sugar poured onto the table.
On May 3, 2006, defendant filed a motion for new trial based upon jury misconduct. In his motion, defendant contended that because no drugs were offered into evidence, the jury improperly took evidence by conducting an experiment with the sugar. Defendant argued that this was improper because defendant did not have an opportunity to confront the evidence at trial. Defendant contended that the experiment improperly influenced the jury’s decision, causing defendant prejudice. On May 12, 2006, the prosecution filed an opposition. The prosecutor argued that there was no showing of jury misconduct because any experiment conducted by the jury was well within proffered evidence. Further, assuming misconduct, any presumption of prejudice was rebutted by the record. At the hearing, the trial court denied the motion.
C. Jury Misconduct
The legal principles governing the issue of extrajudicial jury experiments was aptly summarized in People v. Bogle (1995) 41 Cal.App.4th 770, 778-779: “‘[N]ot every experiment constitutes jury misconduct. “[J]urors must be given enough latitude in their deliberations to permit them to use common experiences and illustrations in reaching their verdicts. [Citations.]” [Citation.]’ [Citation.] ‘It is a fundamental rule that all evidence shall be taken in open court and that each party to a controversy shall have knowledge of, and thus be enabled to meet and answer, any evidence brought against him. It is this fundamental rule which is to govern the use of . . . exhibits by the jury. They may use the exhibit according to its nature to aid them in weighing the evidence which has been given and in reaching a conclusion upon a controverted matter. They may carry out experiments within the lines of offered evidence, but if their experiments shall invade new fields and they shall be influenced in their verdict by discoveries from such experiments which will not fall fairly within the scope and purview of the evidence, then, manifestly, the jury has been itself taking evidence without the knowledge of either party, evidence which it is not possible for the party injured to meet, answer, or explain.’ [Citation.]”
In People v. Cooper (1979) 95 Cal.App.3d 844 (Cooper), the court addressed a claim of jury misconduct wherein, during trial, a juror drove slowly by pedestrians to estimate whether or not a person seated in a moving car could make the same observations testified to by the officers. (Id. at p. 852.) Finding no juror misconduct, the court held that a “juror’s mental processes of ‘estimating’ distances and ‘concluding’ that the officers were credible are in no way objectively verifiable.” (Id. at p. 853.) Similarly, in Wagner v. Doulton (1980) 112 Cal.App.3d 945 (Wagner), a court found no jury misconduct where one juror, an engineer, drafted a diagram of the accident scene and the jury used the diagram in deliberations. The court held that “it is not misconduct for a juror to make a diagram in the jury room based solely on evidence received in court.” (Id. at p. 950.)
The facts in this case are similar to the facts in Cooper and Wagner. Here, the prosecutor offered a photograph of the methamphetamine into evidence. In addition to the photograph of the methamphetamine, the prosecution called four witnesses—each of whom testified to the quantity, nature, and intended use of the methamphetamine found to be in defendant’s possession. Therefore, as in Cooper, it was well within the jurors’ common experiences to “estimate” what the quantity of methamphetamine looked like after hearing the evidence regarding the quantity of methamphetamine found. (Cooper, supra, 95 Cal.App.3d at p. 854.) Moreover, like Wagner, where the jury was permitted to construct their own diagram based on the evidence, so too was it permissible for the jury here to estimate what the quantity of methamphetamine looked like, using sugar as a substitute for methamphetamine, based upon the evidence of quantity presented in court. (Wagner, supra, 112 Cal.App.3d at p. 950.)
Defendant’s reliance on People v. Conkling (1896) 111 Cal. 616 (Conkling), People v. Castro (1986) 184 Cal.App.3d 849 (Castro), and Higgins v. L.A. Gas & Electric Co. (1911) 159 Cal. 651 (Higgins) are misplaced.
In Conkling, the Supreme Court reversed a defendant’s murder conviction because two jurors borrowed a rifle, went to the outskirts of the city, and conducted experiments to see at what distance a rifle discharge would leave powder marks on their clothing. (Conkling, supra, 111 Cal. at p. 627.) There, the court found misconduct because jurors conducted an experiment using evidence not introduced at trial and the experiment resulted in new evidence directly related to a “vital issue” that was contested at trial—the distance between the victim and the defendant. (Id. at pp. 627-628.) Here, unlike the experiment in Conkling, the experiment did not result in new evidence regarding a vital issue contested at trial. The quantity of methamphetamine found was not contested. The jury simply conducted an experiment to visually estimate what that determined quantity looked like. In his reply brief, defendant contends that the “question of whether the drugs were possessed for the purpose of sale was a ‘controverted matter’ at trial.” We agree. However, the issue for us is whether the quantity of methamphetamine found was controverted—it was not. Therefore, the jury’s experiment to visually estimate the amount of methamphetamine found did not constitute jury misconduct.
In Castro, supra, 184 Cal.App.3d 849, a court found misconduct when a juror used a pair of binoculars to determine if a correctional officer could see what that witness claimed to have seen during a prison riot. (Id. at pp. 852-853.) There was no showing that the binoculars used were similar to binoculars used by the witness. There, the similarity between the juror’s binocular and the witness’s binoculars was material because the juror received vital evidence on a contested issue, outside the presence of the defendant, as a result of his use of the binoculars—whether the witness could identify the defendant. (Id. at pp. 853-854.) In contrast, the similarity between the sugar and methamphetamine here is immaterial because the jury relied on the sugar only to visualize an undisputed fact—the quantity of methamphetamine found in defendant’s possession.
In Higgins, supra, 159 Cal. 651, the question for the jury was whether or not a fire could have been started by a spark from a flashlight. (Id. at p. 655.) The Supreme Court found no jury misconduct where the trial court allowed a flashlight into the jury deliberation room, which was not the same flashlight at issue. (Id. at p. 662.) In doing so, the court set forth guidelines under which a jury could use evidence as part of their deliberations. (Id. at p. 657.) It stated that the jury may use an exhibit “according to its nature to aid them in weighing the evidence which has been given and in reaching a conclusion upon a controverted matter.” (Ibid.) The court went on to state that jurors may “carry out experiments within the lines of offered evidence, but if their experiments shall invade new fields and they shall be influenced in their verdict by discoveries from such experiments which will not fall fairly within the scope and purview of the evidence, then, manifestly, the jury has been itself taking evidence without the knowledge of either party, evidence which it is not possible for the party injured to meet, answer, or explain.” (Ibid.)
Based on this statement in Higgins, defendant argues that it was misconduct to use the sugar as a substitute for a controlled substance. Defendant argues that the jury “invad[ed] new fields” and deprived defendant of the opportunity to confront the observations made by the jury, a violation of Higgins. (Higgins, supra, 159 Cal. at p. 657.) Defendant’s reliance on Higgins is misplaced. Here, although the jury used the sugar in a manner outside its nature, it did not do so in the course of “reaching a conclusion upon a controverted matter.” (Ibid.) Instead, as stated previously, the sugar was used as an aid to visualize the uncontroverted amount of methamphetamine that was found.
Based on the above, we hold that there was no jury misconduct in this case.
D. Prejudice
Even if the jury committed misconduct, there was no prejudice. Although a finding of jury misconduct gives rise to a presumption of prejudice, this presumption may be rebutted by a showing that no prejudice actually resulted. (People v. Honeycutt (1977) 20 Cal.3d 150, 156.) Whether an individual verdict should be overturned as a result of prejudice is determined using the “substantial likelihood test, an objective standard.” (People v. Marshall (1990) 50 Cal.3d 907, 950-951.) “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.)
In People v. Phillips (1981) 122 Cal.App.3d 69, 81, a juror conducted experiments at home to demonstrate the solubility of bicarbonate soda to explain how the compound used to kill an infant was carried into the hospital. The court held that the presumption of prejudice was overcome because the experiment was not inconsistent with the evidence, it related to a matter of fairly common knowledge, and there are many other known ways of carrying substances. Therefore, the experiment related to a matter that was tangential, rather than critical to the case. (Ibid.)
Here, the jurors’ experiment of pouring sugar into piles on the jury room table did not result in prejudice to defendant. The record as a whole indicates that there is insufficient evidence to support a finding that the jury was biased by the experiment. Like the experiment in People v. Phillips, supra, 122 Cal.App.3d 69, the fact that the jury conducted an experiment to visually estimate the volume of a gram was immaterial and tangential since the amount of methamphetamine found was not at issue.
Moreover, defendant attempts to distinguish this case from People v. Martinez (1978) 82 Cal.App.3d 1 (Martinez). In Martinez, the California Supreme Court found that, although it was misconduct for the jury foreman to bring maps into the jury deliberation room, no prejudice resulted to the defendant because the maps were used to orient the jury to the precise location of events, which was information introduced at trial. (Id. at pp. 22-23.) Defendant argues that “[w]hile a map might well be useful and reasonable with respect to orientating the jury in applying the testimony concerning locations, there is analogous use of the sugar in this matter.” Defendant’s argument is not persuasive. Here, the use of sugar served a similar purpose of familiarizing the jury with information already presented at trial. The use of the sugar was not related to defendant’s defense. Instead, the jury conducted the experiment to visualize the quantity of the methamphetamine found in defendant’s possession, an uncontroverted fact. Defendant’s defense, that the 5.41 grams of methamphetamine was possessed for personal use and not for sale, was unrelated to the jury’s attempt to visualize the amount based on the evidence presented.
Based on our review of the record, we find that there was no prejudice from any alleged jury misconduct.
III
DISPOSITION
The judgment is affirmed. The superior court clerk is directed to correct the abstract of judgment to reflect that defendant was found guilty by a jury in case No. RIF124637, and forward a corrected copy of the abstract to the Department of Corrections and Rehabilitation.
We concur: McKINSTER J., GAUT J.