Opinion
Rehearing Denied May 11, 1979.
Hearing Granted and Retransferred to Court of Appeal June 28, 1979.
Opinion on pages 1-14 omitted. [*]
HEARING GRANTED.
[154 Cal.Rptr. 637]R. Mark Rose, Sacramento, for defendant and appellant.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Gregory W. Baugher and James Ching, Deputy Attys. Gen., for plaintiff and respondent.
REYNOSO, Associate Justice.
We deal with a charge of jury impropriety. The questions posed are twofold. First, when faced with a motion for new trial, what standard does the trial court apply? More particularly, when the propriety of juror conduct is challenged does a presumption of prejudice lie? Second, what standard of review is appropriately used by an appellate court in determining whether the trial court erred in its ruling on the new trial motion? More particularly, will the reviewing court utilize an "abuse of discretion" standard or one which goes to an "independent review of the record as a whole?"
Our conclusions, which we develop below, are these. First, while a presumption of prejudice will generally lie when juror conduct is challenged, the nature of irregularity must be examined. If the irregularity is such that it reasonably could not have influenced the result then no presumption will lie and the People, accordingly, need not present rebuttal evidence. Second, the right to a jury trial is of such a fundamental nature that the appellate court must make an independent review of the record as a whole in determining whether a trial court ruling respecting juror misconduct was erroneously entered.
Defendant Bruce A. Gabourie appeals from a judgment, entered after the jury found him guilty of two counts of assault with a deadly weapon, sentencing him to state prison. He contends that the trial court erred in its denial of a motion, based in part on juror misconduct, for a new trial. We affirm the judgment.
I
Defendant was charged with five counts arising from two separate incidents, the first dealing with Anthony Gomez, and the second with Mr. and Mrs. Do Him Gee.
An amended information was filed charging defendant with the commission of five crimes as follows: count one attempted robbery of Do Him Gee (Pen. Code, §§ 211, 664), during the commission of which defendant personally used a deadly and dangerous weapon (Pen. Code, § 12022, subd. (b) ); count two assault with a deadly weapon and by means of force likely to produce great bodily injury upon Do Him Gee (Pen. Code, § 245, subd. (a) ); count three assault with a deadly weapon and by means of force likely to produce great bodily injury upon Moy Hueng Gee (Pen. Code, § 245, subd. (a) ); count four robbery of Anthony Gomez (Pen. Code, § 211), in the commission of which defendant personally used a firearm (Pen. Code, §§ 1203.06, subd. (a)(1), 12022.5); count five being a convicted felon in possession of a firearm (Pen. Code, § 12021). In addition, the information alleged that defendant had been previously convicted of a felony, to wit, first degree robbery (Pen. Code, § 211), as the result of which defendant served a separate term in state prison from which custody defendant had not remained free for a period of five years prior to the commission of the above-charged felonies.
The first incident took place on the evening of November 3, 1977. An unhappy Anthony Gomez was arguing with his wife. As a result he took his portable television and went to his car where he watched television until the early morning hours of November 4. After midnight a stranger approached the car and asked for a cigarette. In response, Gomez reached for his cigarettes. [154 Cal.Rptr. 638] The stranger pointed a chrome revolver at him and asked for his wallet as well. The stranger, upon receiving the wallet containing cash, ran away. At trial Gomez identified defendant as the man who had robbed him.
The police officer investigating the crime recovered the wallet in an alley near the Gomez' apartment. The investigating officer took a statement from Gomez which included a description of the robber. The officer later observed a suspect matching the description given by Gomez and brought the suspect to Gomez' apartment. However, Gomez told the officer that the suspect was not the robber. Based upon his investigation of the robbery the officer, who made appropriate notations in his report, concluded that Gomez may have filed a false claim.
Three days later, the second incident occurred. On November 6, Do Him Gee, a 70-year-old grocery store owner, was working in his store which was located on the same block as the Gomez' apartment. Defendant entered the store three times on that day. On the first occasion defendant asked Gee for a specific brand of beer. When Gee answered that he had none, the defendant's request became a demand, but he finally took a different brand of beer. He paid for it, and left the store. Defendant again entered the store, this time with his wife. Defendant asked for a type of candy which Gee did not have. Defendant, after insisting that Gee get the candy, bought another type as well as a soft drink and left the store. Gee later noticed defendant and his wife sitting in front of an apartment next door to his store.
The store was visited for a third time by defendant, again accompanied by his wife, at approximately 1:00 p. m. Defendant bought some gum and again asked for some beer. When Gee refused to get the beer, defendant went to the cooler and got it himself. Gee deposited the money paid him in the cash register. At that time, without warning, defendant struck Gee four times opening a wound. Defendant used a weapon which Gee believed to be a wrench. Mrs. Gee, who was present in the store, shouted at defendant. Defendant turned and seized Mrs. Gee by the throat striking her several times with the object injuring her hands as she shielded herself from the blows. Gee took a bottle in hand and chased defendant out of the store.
As defendant and his wife fled, Mr. and Mrs. Gee and several others, in movie fashion, gave pursuit. The pair passed Gomez as he and his family were leaving their car which was in front of their apartment. Gomez thought he recognized defendant as the man who had robbed him and he, too, joined in the chase. The pair ran down an alley and climbed over the back fence of an apartment building. When a police officer arrived on the scene he began searching for defendant, subsequently finding defendant and his wife hiding in the closet of an apartment belonging to James Stevens, a friend. No weapon was found in the apartment nor on defendant's person.
Defendant testified. He had an alibi to the effect that he was not in Sacramento on the night of the Gomez robbery. Three defense witnesses agreed. With respect to the Gee counts, defendant admitted that he had entered the Gee store on three occasions and that he had struck Gee. He denied, however, that he used a weapon or that he intended to rob Gee. Rather, he testified he hit Gee with his fist after losing his temper because Gee had short-changed him. Mrs. Gee had, he explained, attacked him; nonetheless, he had not struck her while he pulled her hands from his waist.
The jury found defendant guilty of two counts of assault with a deadly weapon, one against each of the Gees. However, the jury acquitted defendant on all other counts.
Defendant moved for a new trial. In support of his motion he submitted a declaration from Judy Phillips, a juror, in which she said that during deliberations Robert Martin, another juror, had stated that he had twenty years experience as a Navy medic, and that in his opinion the wounds to Mrs. Gee's hands could have been caused only by a weapon. She further [154 Cal.Rptr. 639] declared that prior to Martin's statement the jury stood eight for conviction and four for acquittal or undecided, and that after his statement three of the four minority jurors voted for conviction. In addition, defendant submitted a declaration from Kenneth Giberson, another juror, in which he stated that juror Martin professed to have expertise in first aid, and that in his opinion the wounds to Mrs. Gee's hands could not have been caused other than by a weapon. The trial court denied the motion for a new trial.
Defendant also contends that the trial court erred in denying his pretrial motion to sever. Prior to trial defendant had moved to sever the charges in counts one, two and three (the Gee charges) from the charges in counts four and five (the Gomez charges). The motion was denied. During the trial the district attorney moved to strike the allegations of the second and third counts of assault by means of force likely to produce great bodily injury, and to proceed only on assault with a deadly weapon.
II
Juror affidavits, competent to prove the objective facts involved in the deliberation of the jury, are not competent to prove the subjective reasoning process of the jurors. (People v. Hutchinson (1969) 71 Cal.2d 342, 349-351, 78 Cal.Rptr. 196, 455 P.2d 132; People v. Lee (1974) 38 Cal.App.3d 749, 754, 113 Cal.Rptr. 641.) Thus, the declarations were competent to prove the statements made by the juror during deliberations, but not to prove the effect, if any, those statements had on the other members of the jury. Insofar as the declarations purport to establish the subjective reasoning process of the jury we may not consider them. However, defendant asserts that the statements made by the juror constitute juror misconduct in the reception of evidence out of court. Jury misconduct and the reception of evidence out of court, unlike subjective reasoning, are grounds upon which an order granting a new trial may properly be made. (Pen. Code, § 1181, subds. (2), (3).)
The parties urge views which go directly to the merits. Defendant asserts that the statements made by the juror were misconduct and for that reason a presumption of prejudice arises which the People must rebut. Respondent on the other hand, contends that jurors are not required to be Tabula rasa or to disassociate themselves from their varying life experiences and that the statements were thus not misconduct.
We must look at the claimed juror misconduct in context. A claim of juror misconduct, in and of itself, does not present a prima facie case of such misconduct. The claim, after all, may be frivolous. A trial court is free to determine in an appropriate case that, as a matter of law, the alleged juror misconduct is no misconduct at all. However, because trial by jury is a right dearly held and constitutionally protected, claims of juror misconduct merit special consideration. Only the most patently unmeritorious claim should be held not to be misconduct as a matter of law. Those claims not insubstantial as a matter of law, may nevertheless not be so substantial that they carry with them a presumption of prejudice. Other claims, more serious in nature, will carry such a presumption. Where, in this scheme, does defendant's claim lie?
[154 Cal.Rptr. 640]Because of the inquiry required, we do not believe the issue of alleged juror misconduct in the case at bench can be resolved by an early determination as to whether or not it is misconduct for a juror to form a strong opinion or to make statements influenced by his life experiences. In Baker v. Borello (1902) 136 Cal. 160, 167, 68 P. 591, 594, the court noted the general proposition that jurors, in weighing the evidence, may exercise their judgment " 'in the light of their own general knowledge of the subject about which the evidence has been introduced.' " (See also Wiley v. Young (1918) 178 Cal. 681, 687, 174 P. 316; Dyas v. Southern Pacific Co. (1903) 140 Cal. 296, 309, 73 P. 972.) It is also clear that a juror may exceed permissible limits in deliberating even when the deliberation is based on his own personal experiences. (See generally the annotation at 156 A.L.R. 1033.) "Actually, the line cannot always be drawn with exactness, since the underlying distinction itself between general and special facts, common knowledge and individual knowledge, is fluid and uncertain." (156 A.L.R. 1033 at p. 1034.) When an allegation of juror misconduct is made in a motion for a new trial, the trial court should look to the conduct itself, in light of the record, in order to determine whether that conduct is such that a new trial is required.
In considering the merits of the allegations of jury misconduct, which party has the burden of proof? Decisional law appears confusing. A review of early cases will assist us in reaching a reasoned conclusion.
We begin in 1855. The Supreme Court considered the correct standard for the trial court to apply in determining whether irregularities in jury proceedings warrant a new trial. (People v. Backus (1855) 5 Cal. 275.) The case involved the improper separation of jury members; the court, after noting the conflict in other states, held that if the separation was such that the juror might have been improperly influenced by others, the verdict would have to be set aside without the necessity of the defendant showing facts tending to establish improper influences. (5 Cal. at p. 276.) This is necessary, the court stated, because it might be impossible for a defendant to establish the fact of improper influence. (Ibid.) The court reaffirmed this rule in People v. Brannigan (1863) 21 Cal. 337, at page 339: "It would seem therefore but reasonable, where an irregularity has been committed, which May have affected the jury, that the Government, seeking to uphold their action, should be called upon to show that no injury to the prisoner has followed from the irregularity complained of." (Emphasis in original.)
In what was a leading case of its day the California Supreme Court restated the rule in People v. Stokes (1894) 103 Cal. 193, 37 P. 207. The court again affirmed the rule of Backus and Brannigan, but added " 'The rule, however, like every other rule, is to have a reasonable and not a forced, application. It does not apply where there is only a bare possibility of the result having been affected. The case must be such that the court cannot determine with any reasonable certainty whether the result was affected or not.' " (103 Cal. at p. 198, 37 P. at p. 209, quoting Haynes, New Trials and Appeals, § 27.) The early decisional law continued to apply this standard, presuming prejudice from irregularity, but only when the irregularity is such as would tend to prejudice or injuriously affect the jury. (See People v. Wong Loung (1911) 159 Cal. 520, 528, 114 P. 829; People v. Leary (1895) 105 Cal. 486, 490, 39 P. 24.)
More recently, the Supreme Court considered the improper separation of the jury and affirmed the rule of Backus. (In re Winchester (1960) 53 Cal.2d 528, 2 Cal.Rptr. 296, 348 P.2d 904.) If the separation was such that a juror might have been improperly influenced the burden is on the People to rebut the presumption of prejudice. (53 Cal.2d at pp. 534-535, 2 Cal.Rptr. 296, 348 P.2d 904.) In reference to the possibility of influence from mere temporary separation the court observed: "The possibility that the jurors may have been approached by some person or persons present in the kitchen is so remote that we do not believe a presumption of prejudice may be supported [154 Cal.Rptr. 641] by that possibility alone." (Id. at p. 535, 2 Cal.Rptr. at p. 300, 348 P.2d at p. 908.)
Our review of this history convinces us that not every allegation of juror misconduct or irregularity is sufficiently serious to raise a presumption of prejudice. Before prejudice can be presumed it must appear that the irregularity is such that we may reasonably suppose it influenced the result. Upon such a showing of presumption of prejudice arises which the People, of course, must rebut before a verdict may be upheld.
Since In re Winchester, supra, we believe the cases have applied such a standard, although they have not always articulated it as such. Thus, in People v. Kroeger (1964) 61 Cal.2d 236, 37 Cal.Rptr. 593, 390 P.2d 369, the trial court instructed the jury not to read newspaper reports concerning the trial, but allowed them to listen to radio or watch television. The defendant contended the publicity given another pending murder trial influenced the jury in her case. The Supreme Court rejected the contention without applying a presumption of prejudice, holding only that the failure to introduce evidence that the jury had been exposed to the publicity and been influenced by it was fatal to the contention. (61 Cal.2d at 245, 37 Cal.Rptr. 593, 390 P.2d 369; see also People v. Terry (1970) 2 Cal.3d 362, 397, 85 Cal.Rptr. 409, 466 P.2d 961; People v. Aeschlimann (1972) 28 Cal.App.3d 460, 471-472, 104 Cal.Rptr. 689.)
People v. Honeycutt (1977) 20 Cal.3d 150, 141 Cal.Rptr. 698, 700, 570 P.2d 1050, 1052, at page 156, does not change our mind. The Supreme Court considered the effect of jury misconduct and stated: "It is well settled that a presumption of prejudice arises from Any juror misconduct." (Emphasis added.) The court did not qualify its statement; nevertheless, it noted and relied upon the line of cases which established the principle we have discussed. (20 Cal.3d at pp. 156-157, 141 Cal.Rptr. 698, 570 P.2d 1050.) The court's ruling supports our reading. The foreman of the jury in Honeycutt had contacted an attorney acquaintance during a recess from deliberations and asked several questions concerning the law of the case upon which he was sitting. The Supreme Court noted that such conduct created a high potential for prejudice; the Facts of the case reinforced the presumption of prejudice. (20 Cal.3d at pp. 157-158, 141 Cal.Rptr. 698, 570 P.2d 1050.) Due to the clear potential for prejudice in Honeycutt it was unnecessary for the Supreme Court to consider whether every allegation of misconduct, no matter how trivial, raises a presumption of prejudice. We do not believe that the court intended to overrule Sub silentio the line of authority upon which we rely.
As we indicated, we believe that the proper rule raises a presumption of prejudice only when the alleged irregularity is such as might have influenced the result. When the alleged misconduct is such that by its nature no prejudice could have occurred the reason for the presumption of prejudice disappears. To require the People to rebut a presumption of prejudice when the alleged irregularity could not have influenced the result would place upon the People an unwarranted burden. A presumption of prejudice from alleged misconduct might require the People "to isolate and negative the intangible and subliminal ways in which (the juror's) misconduct could have affected the integrity of further deliberations perhaps an impossible task." (People v. Guzman (1977) 66 Cal.App.3d 549, 559, 136 Cal.Rptr. 163, 169.) Such a burden is unwarranted where the alleged irregularity could not have influenced the result.
We turn to an examination of the standard of review on appeal to be applied in considering jury misconduct. It is often stated that a trial court has discretion to grant or deny a new trial and that an appellate court will interfere only when that discretion is abused. (People v. McGarry (1954) 42 Cal.2d 429, 432-433, 267 P.2d 254.) In People v. Aeschlimann, supra, 28 Cal.App.3d 460, 104 Cal.Rptr. 689, the court of appeal considered allegations of juror misconduct and found no abuse of discretion in the denial of a new trial based upon the juror misconduct. (28 Cal.App.3d at pp. 471-472, 104 Cal.Rptr. 689.) And in People v. McDaniel (1976) 16 Cal.3d 156, 127 [154 Cal.Rptr. 642] Cal.Rptr. 467, 545 P.2d 843, the California Supreme Court considered allegations of juror misconduct, and purported to rule under the "abuse of discretion" standard. (16 Cal.3d at p. 177, 127 Cal.Rptr. 467, 545 P.2d 843.)
Where there are no factual conflicts regarding the misconduct itself, as is true in the case at bench, the standard is that of independent review. Thus, the court observed in People v. Brown (1976) 61 Cal.App.3d 476, at p. 481, 132 Cal.Rptr. 217, at p. 221, "(T)he more enlightened and appropriate rule is that since jury misconduct challenges the fundamental rights to an unprejudiced jury and the fairness of the trial proceedings, this issue is an independent appellate issue to be adjudicated by this court based upon the whole record." This view is supported by the most recent Supreme Court decision on the issue, People v. Honeycutt, supra, 20 Cal.3d 150, 141 Cal.Rptr. 698, 570 P.2d 1050. There, the court considered allegations that a member of the jury sought assistance on questions of law by asking an attorney acquaintance questions during recess from deliberations. The court reviewed the misconduct without stating the standard, but without applying an abuse of discretion standard. We conclude, therefore, that the appropriate standard is one of independent appellate review based on the entire record.
We must determine, under the facts of this case, whether the alleged misconduct may reasonably have influenced the result. In making this determination it is well to note the specific facts with which we are concerned. There was no allegation that the juror was biased against defendant or that he concealed his background upon Voir dire. Nor was there an allegation or proof that he formed his opinion prior to submission to the jury nor that he based his opinion upon evidence that was not before the jury. There was no allegation or proof that he had personal knowledge of the facts of the case or that he indicated to the jury that he had such personal knowledge. Nor can the mere fact that he expressed his opinion to other members of the jury be considered to be misconduct, since that is the nature of deliberation. The sole fact of which defendant complains is that the juror in question, in addition to voicing his opinion, attempted to secure a greater weight for his opinion by referring to his background and experience.
This precise question has not been before the California appellate courts before. We believe the appropriate rule has been well articulated by an opinion of a sister state. "In determining what is proper and what is improper discussion among jurors, regard must be had for the fact that the jury are supposedly men (and women) of different [154 Cal.Rptr. 643] walks of life, avocations, and necessarily views that would be affected by their past experiences and situations. They could hardly arrive at a solution of their differences without discussion of the facts before them, and each man's (or woman's) discussion would necessarily be tinged or affected by his own viewpoint and experiences." (Frazer v. State (1924) 99 Tex.Cr.R. 89, 268 S.W. 164, 166.) And a further quote rounds out our thinking: "It must be, too, that in their deliberations jurors more or less generally recall experiences in their own lives, and if new trials were commonly granted for such a reason there would be no end to litigation." (Casey v. United States (9th Cir. 1927) 20 F.2d 752, 754, affd. 276 U.S. 413, 48 S.Ct. 373, 72 L.Ed. 632.)
The probable reason for the lack of California authority on this issue is that prior to People v. Hutchinson, supra, 71 Cal.2d 342, 78 Cal.Rptr. 196, 455 P.2d 132, a verdict could not be impeached by juror affidavits and thus there was no ready means of bringing to the court's attention the conduct of the jury during deliberation. Thus in McWilliams v. Los Angeles Transit Lines (1950) 100 Cal.App.2d 27, at pp. 29-30, 222 P.2d 953, the court refused to consider misconduct of the jury during deliberations for this reason.
We note in passing the standard which would apply If the facts give rise to a presumption (as is not true in the case at bench); "While the cases have never articulated the standard to be applied by an appellate court in determining whether the presumption of prejudice has been rebutted, it is clear that the usual 'harmless error' tests for determining the prejudicial effect of an error (citations omitted) are inapplicable. Convincing evidence of guilt does not deprive a defendant of the right to a fair trial (citation omitted)." (People v. Martinez (1978) 82 Cal.App.3d 1, 21, 22, 147 Cal.Rptr. 208, 220.)
Before concluding, we review our analysis. When faced with a motion for a new trial for claimed jury misconduct, the factual basis must be examined. The first level is one in which the trial court may determine, as a matter of law, that the challenge is without merit. In the second, the challenge, while not frivolous, is not sufficiently serious to give rise to a presumption of prejudice. The third level carries with it a presumption of prejudice; this level will apply whenever the conduct could reasonably have affected the result. There is no need, of course, to prove that the result was in fact affected. On review, the abuse of discretion standard applies, except when no factual conflict appears; in that event the standard is that of independent review based on the whole record. The appellate court, too, must determine whether the alleged misconduct may reasonably have influenced the result.
Our conclusion follows. To aid us we have examined the photographic exhibits showing the wounds to Mrs. Gee's hands. We are convinced that the juror's statements could not have influenced the result. The question before the jury was whether the wounds were made with a weapon. No highly technical issue requiring an expert's opinion was under deliberation; common knowledge and experience sufficed in order to resolve the issue. The juror did not purport to state any facts concerning the case which were not before the jury. He voiced his opinion solely upon evidence properly before the jury. Martin's statement could only have the effect of calling the jurors' attention to the nature of the wounds. We do not believe that the recitation of his background would have influenced the conclusions reached by a reasonable person. In sum, we believe that the uncontroverted factual basis of the motion for new trial places the case at bench at the second level; the claim of juror misconduct, while not frivolous, is not sufficiently serious to carry a presumption of prejudice.
On our independent review of the whole record we conclude that the alleged misconduct could not reasonably have influenced the result.
The judgment is affirmed.
PUGLIA, P. J., and REGAN, J., concur.
[*] Subsequent opinion not certified for publication.
Penal Code section 954 provides that an accusatory pleading may charge two or more offenses connected together in their commission, or different statements of the same offense, or two or more different offenses of the same class of crimes or offenses, under separate counts. That section further provides that the court in which a case is triable, in the interest of justice and for good cause shown, may in its discretion order the different offense or counts tried separately or divided into groups and tried in separate groups.
In commenting upon Penal Code section 954 the California Supreme Court has stated: "Because a severance motion lies within the discretion of the trial judge, denial of the motion will be disturbed on appeal only for abuse of discretion resulting in substantial prejudice to the defendant. (Citation omitted.) (Additionally), '(W)here the consolidation meets the test of joinder . . . the difficulty of showing prejudice from denial of severance is so great that the courts almost invariably reject the claim of abuse of discretion.' (Witkin, Cal. Criminal Procedure, p. 288, quoted with approval in People v. Rhoden (1972) 6 Cal.3d 519, 525, fn. 2, 99 Cal.Rptr. 751, 492 P.2d 1143.)" (People v. Matson (1974) 13 Cal.3d 35, 39, 117 Cal.Rptr. 664, 666, 528 P.2d 752, 754.) A review of the [154 Cal.Rptr. 643] charges against defendant establishes that a joint trial was proper.
The courts of other states, however, have had occasion to pass upon this question. The decisions of other states have been collected and analyzed in an annotation in American Law Reports. (156 A.L.R. 1033.) The annotation concludes that an expression of opinion by a juror which is based upon or influenced by his own observations and experience in connection with his trade, business or profession is a ground for reversal or a new trial when: (1) the statement has no foundation in the evidence admitted at trial thus not having the character of a conclusion drawn from facts legitimately before the jury, but which is based instead upon facts which by analogy have some bearing on a fact in issue, and of which the juror has acquired knowledge outside of the trial through his occupation; (2) the statement influenced the verdict; and (3) the statement involves matters of special knowledge as distinguished from matters of common knowledge. (156 A.L.R. at p. 1036.) Conversely, the statement is not grounds for reversal or a new trial when: (1) it could not have influenced the verdict because it concerned an irrelevant fact or was not sufficiently related to the subject under consideration; (2) it was strictly predicated upon the evidence in the particular case under consideration; or (3) although predicated upon or influenced by his special experiences, it referred to facts which are matters of common knowledge. (Ibid.)