Opinion
C081233
05-18-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY SAMUEL FULSOM, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F02242)
A jury found defendant Anthony Samuel Fulsom guilty of domestic violence (Pen. Code, § 273.5, subd. (a)) and assault with a deadly weapon (§ 245, subd. (a)(1)). The jury also found true several sentencing enhancement allegations. Defendant subsequently filed a motion for a new trial based on juror misconduct. The trial court denied his motion, entered judgment, and sentenced defendant to an aggregate term of 11 years in state prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends trial counsel was ineffective for failing to object to improper remarks made by the prosecutor in closing argument. Defendant further contends the trial court erred in denying his motion for a new trial. We conclude defendant failed to meet his burden on appeal for both claims and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On August 5, 2015, the People charged defendant with one count of domestic violence (§ 273.5, subd. (a)—count one) and one count of assault with a deadly weapon (§ 245, subd. (a)(1)—count two). With regard to count one, the People further alleged defendant personally used a deadly weapon, a knife, within the meaning of section 12022, subdivision (b)(1). As to both counts, the People alleged defendant personally inflicted great bodily injury under circumstances involving domestic violence. (§ 12022.7, subd. (e).) The People also alleged that defendant was previously convicted of domestic violence. Defendant pleaded not guilty and denied the allegations. The case proceeded to a jury trial. The People's Case
Defendant's victim, E.J., was unavailable to testify at trial but testified at the preliminary hearing. Accordingly, her testimony from the preliminary hearing was read into the record.
E.J. and defendant dated in April 2015, but by April 27, 2015, they were no longer dating.
According to E.J.'s testimony, on the afternoon of April 27, 2015, she visited the home of her friend Dorothette Jasper; Charles Hayes also was there. Shortly after E.J. arrived at Jasper's, defendant stopped in front of the home on his bicycle. Defendant asked E.J. where she had been. Another woman argued with defendant; E.J. remained silent.
As defendant was about to leave, E.J.—"playing around"—grabbed a chain from his neck. Defendant said, "[Y]ou are going to have to give that back to me . . . ." Defendant then started chasing E.J. around Jasper's front yard. He caught up to E.J. and grabbed her around the waist while holding a blue and silver object in his hand. At that moment, E.J. felt a puncture and blood "gushing" from her left side, under her arm.
Defendant began kissing E.J.'s face and saying, "[B]abe, I love you, I miss you . . . ." According to E.J., before she collapsed to the ground, defendant asked her if she was okay. Defendant also apologized and said he "didn't mean to do this." After he heard the approaching sirens, however, defendant said, "I don't know what to do. I got to go. I got to go. I don't know what to do." E.J. further testified that Jasper then asked defendant to leave. E.J. did not believe defendant had intentionally stabbed her.
Hayes, who saw E.J. on the front porch after defendant stabbed her, testified that defendant said, "I poked her. Call 911." Then, before authorities arrived, defendant grabbed his belongings and rode away on his bicycle.
Hayes called 911 and reported that E.J. had been stabbed in the stomach, though he did not witness the actual stabbing. He also told the 911 operator that, before leaving on a bicycle, defendant said "he did this and to call 911."
When law enforcement arrived at the scene, E.J. was conscious but appeared to be in shock and could not answer questions. After arriving at the hospital, E.J. told Officer Joey Thebeau she and defendant were dating but had been broken up for a couple weeks. She said she went to her friend's house to pay her money but defendant showed up and started yelling curses at her. She then told Officer Thebeau that defendant said, "I have to spit on a bitch before I leave," walked up to her, and stabbed her in the stomach.
E.J. remained in the hospital for four days. She had surgery to repair the stab wound.
On May 6, 2015, E.J. spoke to Detective Binh Vu on the telephone. During their recorded conversation, E.J. explained that after she arrived at Jasper's home, defendant stopped by with a friend and accused her of cheating on him. Defendant told E.J. to shut up and another of E.J.'s female friends told defendant not to speak to her that way. That woman then argued with defendant.
After calling E.J. names, defendant said, "Well fuck that, I'm gonna go back and I'm gonna spit on this bitch." E.J. threw shoes at defendant to keep him away but defendant said, " 'I got something for you bitch,' " and pulled out a knife that she had previously given him. E.J. quickly realized she had been stabbed. E.J. stepped away and defendant said he did not mean to stab her. Defendant then told Jasper to call 911.
The People also presented evidence of defendant's prior misconduct. In February 2008, defendant struck his then wife in the head with his fist and bit her left shoulder and back. Defendant was prosecuted for the attack.
In June 2008, defendant again struck his ex-wife in the head with his hands. He was prosecuted for that attack as well.
Defendant's Case
Mark Sutter, M.D., treated E.J. in the hospital. E.J. told him that she had been sprayed with mace, jumped, and stabbed. Dr. Sutter noted she was a "poor historian" and it was possible she had a psychiatric disorder. Blood tests indicated E.J. had methamphetamine and benzodiazepines in her system. Dr. Sutter observed a three-centimeter wound to E.J.'s upper left abdomen; the stabbing injured her liver.
Psychiatrist Zhong Shu Yang testified that on August 1, 2014, E.J. was admitted to the Crestwood psychiatric residential facility. Police had been called to her home after report of an attack. When authorities arrived, E.J. was screaming and covered in feces. A small kitchen knife was found in her room. She tested positive for methamphetamine.
E.J. was admitted to Crestwood again on February 18, 2015. She appeared to be delusional. Police were called to E.J.'s home the previous day because she reported there were people in the trees and bushes who were stealing from her home. When they arrived, E.J. told them she was a paranoid schizophrenic, though there was "some concern about whether her report [was] reality based." They looked around and saw full bottles of medication that expired two years prior. A family member advised them that E.J. had not taken medication for some time. Police attempted to detain E.J. and she "aggressively resisted." At Crestwood, E.J. acknowledged using methamphetamine.
In 2001, E.J. was convicted of felony petty theft with a prior.
Debra Watts, defendant's girlfriend at the time of trial, also testified. According to Watts, on Mother's Day a couple of weeks following the April incident, E.J. told her that she and defendant were in a heated argument when E.J. lunged at defendant, "like she was trying to fight him, and then during that was, you know, whatever happened." On cross-examination, Watts could not remember if defendant was present for that May conversation, but thought she probably told a defense investigator only days earlier that defendant was present. Watts did remember that both defendant and E.J. told her the stabbing was accidental. Watts could not, however, remember who told her that first.
Watts also acknowledged speaking to defendant on the phone once or twice since he was taken into custody following his arrest.
Rebuttal
On rebuttal, the People called defense investigator Nicholas Yaranon. On August 7, 2015, Yaranon spoke with Watts. She told him that defendant was present when E.J. told her the stabbing was an accident. During that conversation, Watts remembered that defendant told E.J. he stabbed her by accident and he was sorry she was hurt. Defendant also told E.J. that he accidentally stabbed her after she lunged at him. E.J. told defendant she knew he did not stab her on purpose. E.J. explained to Watts that she came running at defendant and "accidentally got stuck."
Defendant recalled Watts and asked her if E.J. ever talked to Watts about the statements E.J. gave to the police. According to Watts, E.J. told her the paramedics had given her medication so she was "kind of doped up" and "really [did not] know what she told them." Verdict , Judgment , and Sentencing
On August 13, 2015, the case was submitted to the jury. After deliberating for approximately eight hours over three days, the jury found defendant guilty as charged and also found true the enhancement allegations. The trial court subsequently entered judgment and sentenced defendant to an aggregate term of 11 years in state prison.
DISCUSSION
1.0 Ineffective Assistance of Trial Counsel
Defendant contends he was denied effective assistance of trial counsel when counsel failed to object to the prosecutor's improper closing argument. We disagree.
1.1 Relevant Background
At the beginning of trial, the court instructed the jury on the definition of reasonable doubt: "Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty."
Following the admission of evidence and prior to closing arguments, the court further instructed the jury with CALCRIM No. 200: "You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." And the court again instructed the jury on the standard of reasonable doubt as described in CALCRIM No. 220.
During closing argument, defendant's counsel attempted to further explain reasonable doubt to the jury by drawing a parallel between defendant's case and deciding whether to remove a loved one from life-support: "You are most likely going to talk to doctors, family and friends to try to help you make this decision, and at the end of the day you have to reach down to your soul and you have to determine whether you have an abiding conviction to do what you need to do or to make the decision you need to make, because at the end of the day there [are] no take-backs, right?"
The prosecutor responded to that argument in rebuttal: "Defense talked a long time about reasonable doubt, so I'm not going to talk about it too much. It is true it is the highest standard that we have in the criminal justice system, and I do have to prove everything to you beyond a reasonable doubt, but reasonable doubt is not something to be afraid of. In courtrooms all over this building every day juries come to conclusions beyond a reasonable doubt. All across the nation people come to conclusions beyond a reasonable doubt.
"In your everyday life you come to conclusions beyond a reasonable doubt, you just don't call it that. I can tell you beyond a reasonable doubt that my favorite food is buffalo wings with blue cheese dressing. I know that beyond a reasonable doubt. It does not have to be something as extreme as taking someone off life-support. Don't be afraid of the reasonable doubt standard. You all know what it is."
Defendant's counsel did not object.
1.2 Applicable Law and Analysis
A prosecutor enjoys wide latitude during closing argument. (People v. Williams (1997) 16 Cal.4th 153, 221.) The argument may be vigorous and incorporate appropriate epithets as long as it amounts to fair comment on the evidence, and it may include reasonable inferences drawn from the evidence. (Ibid.) "[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Samayoa (1997) 15 Cal.4th 795, 841.) " 'In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (People v. Brown (2003) 31 Cal.4th 518, 553-554.) Generally, a defendant may not raise a claim of prosecutorial misconduct on appeal unless he timely objects to the alleged misconduct at trial. (Samayoa, at p. 841.)
Anticipating the forfeiture rule, defendant contends he was denied effective assistance of counsel by virtue of counsel's failure to object to the prosecutor's comments during rebuttal. Defendant contends the prosecutor's statements constituted misconduct because they trivialized the standard of reasonable doubt. Whether those statements amounted to misconduct, it cannot be said that counsel's failure to object to them constituted ineffective assistance of counsel.
"A criminal defendant's federal and state constitutional rights to counsel [citations] include the right to effective legal assistance. When challenging a conviction on grounds of ineffective assistance, the defendant must demonstrate counsel's inadequacy. To satisfy this burden, the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai (2013) 57 Cal.4th 986, 1009; see Strickland v. Washington (1984) 466 U.S. 668, 690-694 .)
The failure to object to evidence or argument " 'rarely constitutes constitutionally ineffective legal representation . . . .' " (People v. Huggins (2006) 38 Cal.4th 175, 252; accord, People v. Ghent (1987) 43 Cal.3d 739, 772-773 [rejecting contention counsel's failure to object during prosecutor's closing argument amounted to ineffective assistance because counsel may have tactically assumed an objection would draw closer attention to the prosecutor's isolated comment]; see People v. Harris (2008) 43 Cal.4th 1269, 1290 [same].) Defendant's counsel may have chosen not to object to the prosecutor's comments because he did not want to draw further attention to the argument and detract from his own detailed argument regarding the burden of proof. Thus, defendant cannot establish his counsel's performance was deficient. (See Huggins, supra, 38 Cal.4th at p. 252 [" '[I]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective . . . unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.' "].)
Defendant has thus failed to establish he received ineffective counsel at trial.
Moreover, the jury was instructed with CALCRIM No. 220, defining reasonable doubt, and CALCRIM No. 200, which dictates that if the jury believed the attorneys' comments conflicted with the trial court's instructions, they were to follow the instructions as given by the trial court. The jury is presumed to understand and follow the instructions of the trial court. (People v. Archer (1989) 215 Cal.App.3d 197, 204.)
2.0 New Trial Motion
Defendant also contends the trial court erred in denying his motion for a new trial based on juror misconduct. We disagree.
2.1 Relevant Background
The jury returned its verdicts on August 17, 2015.
On September 10, 2015, defendant moved for a new trial based on a juror's contact with a defense witness outside the courtroom, contact that the juror then described to other jurors during trial and again during deliberations. The People opposed defendant's motion.
Defendant then moved the court to release contact information for jurors so that counsel could obtain declarations from the jurors in support of his motion for a new trial. The trial court granted that motion.
On December 9, 2015, defendant filed a second notice and motion for a new trial, stating the same grounds as the motion he previously filed. This time, however, defendant supported his motion with declarations from two jurors: Juror No. 2 and Juror No. 10.
According to Juror No. 2, defense witness Watts approached her in the hallway outside the courtroom during a short break in the trial. Watts said to Juror No. 2: " 'Can you believe this? Isn't this ridiculous?' " Watts then asked Juror No. 2: " 'Do you think he's guilty?' " Juror No. 2 responded by telling Watts that Watts should not be talking to her. In response, Watts said, " 'I'm hungry,' " then walked away.
As Watts walked away, Juror No. 2 looked over at a group of other jurors and saw them looking back at her. When Juror No. 2 returned to the courtroom, she told the bailiff about her encounter with Watts.
According to Juror No. 2, during their deliberations, all of the jurors talked about Watts's approaching Juror No. 2. After the verdict, Juror No. 2 contacted defendant's trial counsel and told her what happened.
In a separate declaration, Juror No. 10 recollected seeing Watts approach Juror No. 2. Juror No. 10 did not hear what Watts said to her. Juror No. 2 then approached Juror No. 10 and said, " 'I can't believe she walked up to me. I'm going to let the bailiff know.' " Then, when they returned to the courtroom, Juror No. 10 saw Juror No. 2 tell the bailiff what happened.
During deliberations, Juror No. 10 heard Juror No. 2 talk about Watts's interaction with her. Juror No. 10 also observed four jurors have a " 'little discussion' about Ms. Watt's [sic] and her credibility because she talked to . . . one of the jurors."
On January 15, 2016, the trial court issued a lengthy written decision denying defendant's motion for a new trial. In its decision, the court noted that despite Juror No. 2's efforts to inform the court of Watts's contact, the bailiff never relayed that information to the court. The court also found the jurors' declarations admissible.
On the motion's substance, the trial court found three incidents of misconduct: (1) Juror No. 2's "inadvertent receipt of information that had not been presented in court . . . ; (2) Juror [No.] 2's providing this information to other jurors; and (3) the discussion of this information by the other jurors during deliberations, including a discussion of Ms. Watts's credibility because she spoke to Juror [No.] 2." Thus, prejudice to defendant was presumed.
The trial court then analyzed whether the presumption of prejudice was overcome. The court ruled that neither the "extraneous material conveyed by Ms. Watts to Juror [No.] 2," nor the extraneous material conveyed to the other jurors by Juror No. 2's telling of the contact with Ms. Watts was "so prejudicial in and of itself that it is inherently and substantially likely to have influenced a juror." The court also ruled that "from the nature of the misconduct and the surrounding circumstances," it was not "substantially likely a juror was 'actually biased' against the defendant as a result of the brief statements made by Ms. Watts to Juror [No.] 2, or from Juror [No.] 2 to the remaining jurors."
The trial court then ruled that "the jury's discussion of Ms. Watts's contact with Juror [No.] 2, as vaguely described in the evidence" did not hold "the possibility, let alone the substantial likelihood, that it prejudiced defendant's defense or resulted in a manifest unfairness in the trial."
Moreover, the court ruled, "from the nature of the misconduct and the surrounding circumstances, that the jury's discussion of Ms. Watts's statements to Juror [No.] 2 and discussion of her credibility in connection with that contact, were not substantially likely to have resulted in a juror being actually biased against the defendant."
Whether there was juror misconduct is not an issue challenged on appeal. The only issue is whether the presumption of prejudice was rebutted. --------
Juror misconduct " 'raises a presumption of prejudice that may be rebutted by proof that no prejudice actually resulted.' " (In re Hitchings (1993) 6 Cal.4th 97, 118.) "[W]hen misconduct involves the receipt of information from extraneous sources, the effect of such receipt is judged by a review of the entire record, and may be found to be nonprejudicial. The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. First, [courts] will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. [Citation.] The judgment must be set aside if the court finds prejudice under either test." (In re Carpenter (1995) 9 Cal.4th 634, 653 (Carpenter).)
To determine whether extraneous material is inherently and substantially likely to have influenced a juror, courts use a test "analogous to the general standard for harmless error analysis under California law." (Carpenter, supra, 9 Cal.4th at p. 653.) The test to determine whether a juror was actually biased against the defendant, however, is " 'different from, and indeed less tolerant than,' normal harmless error analysis, for if it appears substantially likely that a juror is actually biased, we must set aside the verdict, no matter how convinced we might be that an unbiased jury would have reached the same verdict." (Id. at p. 654.)
"Thus, even if the extraneous information was not so prejudicial, in and of itself, as to cause 'inherent' bias under the first test, the totality of the circumstances surrounding the misconduct must still be examined to determine objectively whether a substantial likelihood of actual bias nonetheless arose. 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." (Carpenter, supra, 9 Cal.4th at p. 654.) In particular, reviewing courts are to consider "the nature of the juror's conduct, the circumstances under which the information was obtained, the instructions the jury received, the nature of the evidence and issues at trial, and the strength of the evidence against the defendant." (Ibid.)
"What constitutes 'actual bias' of a juror varies according to the circumstances of the case." (People v. Nesler (1997) 16 Cal.4th 561, 580 (Nesler).) When, as here, a party challenges a juror for actual bias, bias is defined as " 'the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.' " (Id. at p. 581.)
" '[W]e accept the trial court's findings of historical fact if supported by substantial evidence, but we review independently the question of whether prejudice arose from juror misconduct.' " (People v. Jackson (2016) 1 Cal.5th 269, 332.)
2.3 Analysis
Defendant contends the evidence established that "at least [Juror No. 2], if not other jurors, was actually biased" against defendant. Defendant makes three arguments to support his claim. First, defendant argues that by reporting Watts's communication with her to other jurors, Juror No. 2 demonstrated her intent to influence the verdict and therefore her bias. Second, defendant argues that by raising the issue of Watts's conduct during jury deliberations, Juror No. 2 demonstrated that she did not disregard the extraneous information but rather was influenced by it during deliberations. Third, defendant argues that the four jurors who, during deliberations, discussed Watts's communication with Juror No. 2 relative to her credibility, had obviously been unable to put aside their impression of Watts based on the extraneous information they received from Juror No. 2 and were therefore biased against defendant. We are not persuaded.
2.3.1 Based on the surrounding circumstances, it is not substantially likely that Juror No. 2 was actually biased against defendant.
In Nesler, the defendant was convicted of voluntary manslaughter with the use of a firearm for killing a man who was charged with molesting her son. (Nesler, supra, 16 Cal.4th at p. 565.) During the sanity phase of the trial, Juror Katherine Elizabeth Boje encountered a woman in a bar. (Id. at pp. 570, 574.) That woman told Boje she used to babysit for Nesler. (Ibid.) Boje did not identify herself as a juror in Nesler's trial, nor did she consider leaving the bar. (Id. at p. 579.) Instead, Boje listened to the woman describe Nesler as a bad mother who would leave her children "for long periods of time" and who used "illicit drugs." (Id. at p. 574.)
Then, during deliberations, "when the jury discussed whether [the] defendant's drug use was occasional or repeated and whether [the] defendant truly was concerned for her child's welfare, Boje referred repeatedly to the out-of-court information she had obtained." (Nesler, supra, 16 Cal.4th at p. 583.) Boje knew she should not discuss matters that were not part of the evidence, but she persisted and "intentionally interjected this outside information into the deliberations when she disagreed with the positions of other jurors." (Ibid.) She did this "despite admonitions from other jurors not to do so." (Id. at p. 588.)
Our Supreme Court ruled that Boje's misconduct demonstrated a substantial likelihood she was actually biased against Nesler. (Nesler, supra, 16 Cal.4th at p. 589.) In so ruling, the court found Boje's misconduct was "substantially related to important matters raised during trial." (Id. at p. 585.) Boje repeatedly "used the prejudicial information that she obtained about [the] defendant in arguing with the other jurors about issues involving evidence presented at trial that conflicted with Boje's information." (Id. at p. 587.) And she "emphasized the extrajudicial information" she obtained from the stranger at the bar to change the views of other jurors and to try to convince other jurors to disregard evidence admitted at trial. (Id. at p. 589.)
The court's "review of Boje's conduct in light of the entire record" convinced the court that Boje "was unable to put aside the impressions and opinions formed from her consideration of the extraneous information, and to decide the matter based solely upon the evidence presented at trial." (Nesler, supra, 16 Cal.4th at p. 589.) Accordingly, the court found there was a substantial likelihood Boje was actually biased, and "the presumption of prejudice arising from her misconduct remain[ed] unrebutted." (Ibid.) The circumstances presented here are materially different.
Here, when Juror No. 2 was confronted by Watts, Juror No. 2 immediately told Watts they should not be speaking. Unlike in Nesler, Watts did not convey any information to Juror No. 2 about defendant or specific facts related to the issues in the case. Juror No. 2 then expressed her surprise at Watts's conduct to Juror No. 10 and, after the break was over, Juror No. 2 advised the bailiff of the encounter. Then, during deliberations, Juror No. 2 only "talked about Ms. Watt's [sic] interaction with her."
There is no evidence that Juror No. 2 repeatedly raised the issue of Watts's conduct during deliberations. There is no evidence that Juror No. 2 raised the information during a disagreement or to persuade other jurors to change their minds on important issues. There is no evidence that Juror No. 2 used the extraneous information to persuade other jurors to ignore evidence admitted at trial. Nor is there evidence that Juror No. 2's reference to her encounter with Watts did or was intended to convey information to other jurors that conflicted with evidence admitted at trial.
Defendant argues the bare fact that Juror No. 2 disclosed extraneous information to other jurors is sufficient to demonstrate she was actually biased against defendant. Defendant is wrong. As in Nesler, Juror No. 2's misconduct must be considered in light of the surrounding circumstances. And when we consider Juror No. 2's conduct in light of the surrounding circumstances here, we conclude it is not substantially likely she was actually biased against defendant. Therefore, the presumption of prejudice was rebutted.
2.3.2 Based on the surrounding circumstances, it is not substantially likely that other jurors were actually biased against defendant.
Under penalty of perjury, Juror No. 10 said: "Approximately four jurors . . . , had a 'little discussion' about Ms. Watt's [sic] and her credibility because she talked to . . . one of the jurors." Defendant contends this alone creates a substantial likelihood that these jurors were actually biased against defendant because it demonstrates their determination that Watts was not a credible witness based on out-of-court information. Again, we are not persuaded.
Contrary to defendant's contention, having a " 'little discussion' " about Watts "and her credibility because she talked to . . . one of the jurors" does not demonstrate the jurors were actually biased against defendant. It is not evidence that the jury discussed Watts as an incredible witness because of her conduct outside the courtroom. Nor is it evidence that, when discussing Watts and her credibility, one or more of those jurors used Watts's conduct outside the courtroom to persuade other jurors to change their opinion of Watts's credibility.
In addition, Watts's testimony was largely cumulative and added little to defendant's case. She testified, as E.J. did, that both E.J. and defendant believed the stabbing was an accident. Watts also testified the stabbing occurred during a fight between E.J. and defendant, but her testimony was not inconsistent with the characterization of the stabbing as an accident; it simply laid the blame for the accident at E.J.'s feet: "According to . . .Watts, . . . [E.J.] [told] her that [defendant] and [E.J.] got into an argument. That argument escalated, and that [E.J.] lunged at [defendant] to try to hit him. [E.J.] told her it was an accident, and that [defendant] said it was not on purpose, and he was sorry and it was an accident." (See Carpenter, supra, 9 Cal.4th at p. 653 [surrounding circumstances include the nature of the evidence and issues at trial].)
Accordingly, when we consider the jurors' misconduct in light of the surrounding circumstances, we conclude it is not substantially likely the jurors were actually biased. Therefore, the presumption of prejudice has been rebutted.
DISPOSITION
The judgment is affirmed.
BUTZ, J. We concur: ROBIE, Acting P. J. MURRAY, J.