Opinion
D073117
05-03-2018
THE PEOPLE, Plaintiff and Respondent, v. CARLOS HERNANDEZ, Defendant and Appellant.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVA1302200) APPEAL from a judgment of the Superior Court of San Bernardino County, Stanford E. Reichert, Judge. Affirmed with conditions and remanded with directions. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Defendant and Appellant.
A jury convicted Carlos Hernandez of five counts of forcible rape of a child over 14 years of age (Pen. Code, § 261, subd. (a)(2); counts 1-5), five counts of forcible oral copulation with a minor victim over 14 years of age (Pen. Code, § 288a, subd. (c)(2)(C); counts 6-10), and five counts of forcible sexual penetration by a foreign object of a minor victim over 14 years of age (Pen. Code, § 289, subd. (a)(1)(C); counts 11-15). The court sentenced Hernandez to an determinate term of 155 years in state prison, consisting of upper consecutive terms of 11 years each on counts 1 through 5, 10 years each on counts 6 through 10, and 10 years each on counts 11 through 15.
Hernandez contends: (1) the trial court erred by admitting evidence of uncharged sexual misconduct evidence under Evidence Code section 1108; (2) the modified CALCRIM No. 1191 jury instruction interfered with the presumption of innocence and his right that the jury determine guilt on proof beyond a reasonable doubt; (3) the court prejudicially erred by admitting into evidence the victim's tattoos and their meaning, which constituted hearsay; (4) the court prejudicially erred by failing to instruct the jury that it could not use expert testimony on delayed disclosure of abuse to determine the truth of the allegations against him; (5) the court used the wrong legal standard, abused its discretion, and denied him his rights to due process and a fair trial when it denied his new trial motion on grounds of juror misconduct; and (6) the court abused its discretion in denying his request for juror contact information. He argues if this court finds he forfeited his evidentiary or instructional error claims, that his counsel was prejudicially ineffective for failing to object below. We will conditionally affirm the judgment and remand with directions that the trial court proceed in accordance with Code of Civil Procedure section 237, as more fully set forth below.
Undesignated statutory references are to the Evidence Code.
FACTUAL AND PROCEDURAL BACKGROUND
Hernandez does not challenge the sufficiency of the evidence of his convictions, thus, we summarize the background facts with enough detail to assess his claim that the court erred by admitting uncharged offenses involving Jane Doe, the victim in this case. (People v. Miramontes (2010) 189 Cal.App.4th 1085, 1090.) As for his other appellate contentions, we state facts and procedure relevant to those in the parts of our opinion addressing them.
The Charged Offenses
In August 2011, Hernandez committed a series of sexual assaults on Doe, the then 15-year-old sister of Hernandez's wife, L.R. Doe was staying with L.R. and Hernandez for a week during the summer at their Rialto home, as she had done in past years, to spend time with her niece and nephew. During that time, Doe slept in L.R.'s guest bedroom, but she spent a lot of time alone with Hernandez, usually watching television at night. Doe considered Hernandez her best friend; she and Hernandez texted weekly about Doe's school and Hernandez's work, and on occasion Hernandez furnished her with beer.
On the evening of August 2, 2011, Doe and Hernandez watched television in the living room after the children had gone to bed. Doe then went to the guest bedroom and closed the door, changed into pajamas, got under the bed covers, and turned on the television in that room. After a few minutes, Hernandez entered the guest room, laid on the bed on top of the covers and watched television with Doe. They wrestled with each other as they had done before in front of family members, then stopped to catch their breath, and Hernandez lifted Doe's shirt to fan himself. When they began watching television again, Hernandez began rubbing Doe's lower calf, then the inside of her thigh, then her vagina, in a circular motion over her clothing. Hernandez asked Doe if she wanted him to stop; she told him yes and moved away, but after a minute he moved closer to her and began rubbing her vagina again over her clothing. Scared and hurt, Doe tried to push his hand away, but Hernandez was stronger and she was unsuccessful. Hernandez then lifted her waistband and underwear and began rubbing Doe on her bare skin, then penetrated Doe's vagina repeatedly with his finger. Doe was scared and afraid Hernandez was going to hit her, as she had never seen that side of him; she thought about screaming but did not want to scare the children. After a while, Hernandez stopped. He left a few minutes later. Doe cried.
The next night, Hernandez entered the guest bedroom again, closed the door, and watched television with Doe while they drank two or three beers, which they commonly did. Hernandez again started rubbing Doe's vagina over her clothes, then under her clothes, and then penetrated her vagina with his fingers while Doe tried to push his hand away. He then pulled Doe's pants and underwear down, and penetrated Doe's vagina with his tongue. Hernandez removed his shorts and underwear, and inserted his penis. The assault ended when Hernandez grabbed Doe's hand and made her rub his penis until he ejaculated.
On the nights of August 4, 5, 6, and 7, 2011, Hernandez assaulted Doe in the guest room in the same manner, with digital penetration, oral copulation and vaginal intercourse. On these occasions, Hernandez used a condom.
On October 2, 2013, Doe generally disclosed the assaults to a teacher, who took her to a police station to report the incidents.
Prior Uncharged Act Evidence
In the People's trial brief, the prosecutor asked to admit evidence of other incidents of uncharged sexual assaults by Hernandez against Doe occurring after August 2011 in different cities. At the same time, Hernandez moved in limine to exclude the uncharged instances of sexual misconduct on grounds they had minimal probative value that was outweighed by their prejudicial effect, the prosecution did not introduce sufficient foundational evidence to admit them, and the incidents were only introduced to prove his propensity to commit the charged crimes. At the hearing on the matter, defense counsel further pointed out the district attorney had elected not to prosecute those incidents; she argued they were remote and undated, they would confuse the jury, and they would be inflammatory.
The court initially excluded the evidence but later permitted its introduction as relevant to Doe's credibility and Hernandez's disposition to commit the offenses. The court ruled the acts, which occurred in 2012 and 2013, were specific enough with respect to location and time; the uncharged incidents were not too remote from the charged acts; the jury would not be confused or distracted because the misconduct involved the same individuals and were similar acts; the acts were not more inflammatory than the charged acts; any burden on Hernandez was alleviated by the trial schedule; and there was no less prejudicial alternative to submission of the evidence. As for the certainty of the uncharged acts' commission, the court found that depended on witness credibility, an issue for the jury.
Consequently, at trial, the prosecutor elicited Doe's testimony that after August 2011, she continued to spend time with Hernandez during school breaks in 2012 and 2013, she otherwise saw him about once a month, and his sexual assaults continued during that time until the last incident on May 11, 2013.
In one incident between August 2011 and May 2013, Doe had stayed at Hernandez's house and he was driving Doe back home when his car began to overheat. Hernandez stopped at a car mechanic's shop. While he and Doe waited in the waiting room, he began rubbing her vagina outside of her clothing.
In another incident, Hernandez purchased beer and drank it with Doe, then took Doe to a movie theater in Norwalk. Once in the theater, Hernandez tried to put his hand down Doe's pants, but she pushed him away. He then grabbed her hand and put it down his pants and underwear and forced her to rub his penis until he ejaculated. After the movie, they went to a fast food restaurant and parked. There, Hernandez again tried to put his hand down Doe's pants, but Doe was able to push him away.
Between August 2011 and June 2012, Hernandez picked up Doe in his car under the guise of tutoring her, but took Doe to a motel in Pico Rivera. When he opened the motel room door, Doe refused to enter because it smelled of cigarettes and had stains on the comforter and floor. Hernandez then drove to a movie theater parking lot where he put his hand down Doe's pants, rubbed her vagina under her clothes, then penetrated her with his fingers. When other cars appeared, he drove to a lake, instructed Doe to get in the back seat and pulled down her pants and underwear while she struggled to keep them up. He then penetrated her vagina with his fingers, then his tongue while penetrating her anus with his finger. Doe began to cry, but Hernandez removed his shorts and underwear, grabbed Doe's head and forced her to orally copulate him. He then put on a condom and raped her. At trial, Doe explained that this incident "haunt[ed] her the most" and because it was raining that day, she got flashbacks whenever it rained.
Sometime between March 2012 and March 2013, Hernandez took Doe to a liquor store in Pico Rivera and bought himself beer and her a flask of Jack Daniels. He then drove them to his parents' house in Rosemead after making sure no one was home. As they watched television on the living room couch, Hernandez put his hand down Doe's pants and rubbed, then penetrated her vagina, with his fingers. He removed Doe's pants and underwear while Doe tried unsuccessfully to hold them up, removed his own shorts and underwear, and forced Doe to orally copulate him. Doe was feeling sleepy from the effects of having three or four shots of alcohol. Hernandez then raped Doe, after which she went to the bathroom, got sick and cried, and returned to the living room. After they left the house, Hernandez took Doe to a fast food restaurant and then home.
On May 11, 2013, Hernandez drove Doe and her brother to a convenience store where Hernandez purchased a six-pack of alcoholic lemonade. He then drove to a parking structure near the Norwalk theater where the three of them drank the six-pack before going to see a movie. When Doe's brother fell asleep during the movie, Hernandez put his hand down Doe's pants and rubbed her vagina until Doe was able to pull his hand out of her pants. Doe recalled the date of this incident specifically because it was two days before her grandmother died.
Other Trial Evidence
Doe described the appearance of Hernandez's penis, and she related in a police interview details about his pubic hair.
Hernandez's wife testified she confronted Hernandez a few days after Doe reported him to police. According to her, Hernandez never denied what had happened between him and Doe. In a later phone call Hernandez offered to stay away from her family if they agreed not to go to police. She confirmed Doe's descriptions of Hernandez's penis.
The People presented Rialto Police Department Detective Carla McCullough, who testified she had investigated hundreds of child sexual assault cases, spoken to hundreds of child victims about details of their assaults, and had been in court to see the victims testify about their assaults about one hundred times. Over defense counsel's objections that she was not qualified as an expert and her testimony was irrelevant, Detective McCullough explained based on her training and experience it was "definitely not" common for child victims to disclose every detail of every incident on their first disclosure, and it was common for such victims to disclose different incidents to different officers. Later, outside the jury's presence, the court for purposes of a jury instructions ruled that Detective McCullough was not qualified as an expert, and refused to give the instruction concerning expert witness testimony (CALCRIM No. 332).
Defense Evidence
Hernandez testified in his defense that he and Doe were like brother and sister, and she confided in him about problems with her family and school. He recalled Doe describing his family as "smiling and happy," and characterized Doe as being jealous of that. Hernandez admitted Doe invited herself over and often spent the night. He described the master bedroom and spare room as adjacent or "kitty corner" from one another. According to Hernandez, in August 2011, the master bedroom door could never be completely closed, and the spare room door was noisy. Hernandez testified that Doe's sister and mother saw Doe drink alcohol between ages 15 and 17, and he admitted purchasing alcohol for Doe and her brother once because they asked him to do so. He claimed that Doe saw his private parts when Doe's brother jokingly pulled down his pants and underwear in front of Doe, and also claimed Doe was present during a conversation among family members where Hernandez related that he wanted his son to be uncircumcised, like himself. He denied penetrating, orally copulating, or raping Doe by force, or touching her private parts. He denied doing any of the other uncharged acts described by Doe.
Rebuttal
In rebuttal, Doe's mother testified she did not allow Doe to drink alcohol until after she was 18 years old, and was not aware Hernandez had purchased alcohol for Doe until trial. Doe's brother testified he never pulled Hernandez's pants down in front of Doe and had never seen Hernandez's penis exposed at a family function.
Jury Instructions
The court instructed the jury with a modified version of CALCRIM No. 1191 (presently CALCRIM No. 1191A, identical to the former instruction), as follows: "The People presented evidence that the defendant committed other crimes that were not charged in this case. These crimes are defined for you in these instructions.
"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
"If the People have not met this burden, you must disregard this evidence entirely.
"If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses and, based on that decision, also conclude that the defendant was likely to commit and did commit counts 1 through 15 as charged here. If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of counts 1 through 15. The People must still prove each charge beyond a reasonable doubt."
DISCUSSION
I. Admission of Prior Uncharged Misconduct Under Section 1108
Hernandez contends the trial court erred by admitting evidence of the uncharged assaults against Doe that occurred after August 2011 to establish his propensity to commit such crimes. Pointing out his offenses against Doe lacked corroborating medical or forensic evidence or independent witnesses, he maintains the case was a credibility contest, rendering the propensity evidence "significant if not crucial" to the People's case. According to Hernandez, because evidence of the prior incidents involved him and Doe, it had little added probative value, but was highly prejudicial "because it portrayed Hernandez as a compulsive sexual predator, who abused Doe at virtually every opportunity the two were alone together." Hernandez also contends section 1108 is unconstitutional so as to preserve such a claim for possible review by this state's high court or the federal courts. A. Constitutional Challenge to Section 1108
Hernandez expressly raises his claim of a due process and fair trial violations only to preserve the claim for appeal; he concedes the California Supreme Court has rejected such a due process challenge in People v. Falsetta (1999) 21 Cal.4th 917, but maintains Falsetta is contrary to one pre-Falsetta United States Supreme Court opinion and other federal circuit court opinions. He also argues the weighing process of section 352 does not ensure a fair trial or protect against the unfairness of propensity evidence: such evidence has no probative value with respect to guilt but the jury's natural impulse is to infer guilt, and the standards are so lax (in that the court need not expressly weigh prejudice against probative value) that it is impossible to evaluate the court's action for abuse of discretion. Since its decision in Falsetta, the California Supreme Court has reiterated the constitutionality of section 1108 against challenges that it violates the due process clause. (People v. Villatoro (2012) 54 Cal.4th 1152, 1160; People v. Loy (2011) 52 Cal.4th 46, 60.) We are bound by Falsetta and these other cases. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) B. Admissibility of Prior Act Evidence
In part, Falsetta held that while "trial courts may no longer deem 'propensity' evidence unduly prejudicial per se," they "must engage in a careful weighing process under section 352." (People v. Falsetta, supra, 21 Cal.4th at pp. 916-917.) As to this process, it stated: "Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (Id. at p. 917.) The requirement that trial courts undertake a careful section 352 analysis "save[d] section 1108 from defendant's due process challenge" and "strongly support[ed]" section 1108's constitutionality. (Id. at p. 916.) " 'With this check upon the admission of evidence of uncharged sex offenses in prosecutions for sex crimes, we find that . . . section 1108 does not violate the due process clause.' " (Id. at p. 918, italics omitted.)
1. Legal Principles
Section 1108 sets forth an exception to the general rule against the use of evidence of a defendant's misconduct apart from the charged offense to show a propensity to commit crimes. (People v. Villatoro, supra, 54 Cal.4th at pp. 1159-1160.) It is premised on the recognition that sex offense propensity evidence is critical in sex offense cases given the serious and secretive nature of sex crimes. (People v. Falsetta, supra, 21 Cal.4th at p. 918.) " '[W]hen a defendant is accused of a sex offense, Evidence Code section 1108 permits the court to admit evidence of the defendant's commission of other sex offenses, thus allowing the jury to learn of the defendant's possible disposition to commit sex crimes. [Citation.] The court has discretion under Evidence Code section 352 to exclude the evidence if it is unduly prejudicial. [Citation.] The evidence is presumed admissible and is to be excluded only if its prejudicial effect substantially outweighs its probative value in showing the defendant's disposition to commit the charged sex offense or other relevant matters.' " (People v. Williams (2016) 1 Cal.5th 1166, 1196.)
Section 1108 provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." (§ 1108, subd. (a); People v. Merriman (2014) 60 Cal.4th 1, 40.)
A court engaging in a section 352 analysis with regard to one or more other sex offenses "undertakes a careful and specialized inquiry to determine whether the danger of undue prejudice from the propensity evidence substantially outweighs its probative value. Specifically, the court weighs factors such as the 'nature, relevance, and possible remoteness [of the evidence], the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses . . . .' " (People v. Merriman, supra, 60 Cal.4th at p. 41, quoting People v. Falsetta, supra, 21 Cal.4th at p. 917.) Though we apply a presumption in favor of the admissibility of other sex offense evidence; the evidence should not be admitted in cases where its admission could result in a fundamentally unfair trial. (People v. Loy, supra, 52 Cal.4th at p. 62.)
On appeal, we review the court's admission of section 1108 evidence, including its section 352 weighing process, for abuse of discretion. (People v. Cordova (2015) 62 Cal.4th 104, 132; People v. Dejourney (2011) 192 Cal.App.4th 1091, 1104-1105.) "We will not find that a court abuses its discretion in admitting such other sexual acts evidence unless its ruling ' "falls outside the bounds of reason." ' " (People v. Dejourney, at p. 1105.) Alternatively stated, we will not reverse a trial court's exercise of discretion under sections 1108 and 352 unless its decision was arbitrary, capricious or patently absurd and resulted in a manifest miscarriage of justice. (People v. Lewis (2009) 46 Cal.4th 1255, 1286; People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
2. Analysis
We reject Hernandez's contention that the court erred by admitting the prior act evidence for his propensity. He maintains the Falsetta factors militated strongly in favor of excluding the evidence, particularly the absence of an independent source for the uncharged allegations. According to Hernandez, the uncharged acts had little to no probative value because the allegations were made by Doe, whose credibility he challenged. While he does not contest the question of remoteness, he argues the certainty of the acts' commission was weak given the absence of corroborating evidence; he had increased difficulty defending against them and tracing his whereabouts because of the larger scope of the geographic area and chronological period; and the jury may have been influenced by the fact he had avoided prosecution or punishment for those other, more serious, offenses. Hernandez asserts that there are no published cases where the uncharged acts were committed against the same individual making the charges.
The latter contention is incorrect. In People v. Ennis (2010) 190 Cal.App.4th 721, the court applied Falsetta's considerations to evaluate the admissibility of a victim's testimony recounting uncharged sex offenses committed by the defendant against her. (Ennis, at pp. 733-735.) There, the defendant was charged with various sexual assaults against his daughter and stepdaughter. (Id. at p. 724.) He argued the trial court erred in allowing the jury to hear testimony from his daughter, C., that he committed additional uncharged acts of sexual abuse against her during the time they lived in Arizona. (Id. at p. 732.) Our colleagues in the Fourth District, Division Three observed that "when such evidence comes in a child molestation case, from the same witnesses who supplied the evidence of the charged crimes, and amounts to evidence that the defendant molested the child even more times than he was charged with, it wouldn't seem to advance the ball in any meaningful way." (Id. at p. 733.) But the appellate court nevertheless rejected the defendant's argument that the prejudicial impact of the evidence substantially outweighed its probative value. (Ibid.) It stated that whatever emotional bias the propensity evidence invoked, it was insignificant given the "substantially identical" evidence of the charged crimes, thus nothing about the prior crimes made the defendant look "significantly worse, or made his alleged [charged crimes] appear significantly more egregious, than it already did." (Id. at p. 734.) Nor did anything about the prior crimes evidence make the evidence of the charged crimes "look substantially more credible than it would have otherwise." The court stated: "If the jury was not inclined to believe what C. had told the police about what happened to her in California (before recanting), and what [his former wife] testified to at trial about what happened to both [victims] in California, it's difficult to imagine how hearing additional evidence from the same sources, about similar crimes committed against the [victim] in Arizona, would change anything." (Ibid.)
Ennis's conclusions apply equally to this case. Other than the location of the events, Doe's accounts of Hernandez's abuse occurring in 2012 and 2013 are not considerably different, or significantly more inflammatory, than the vaginal penetrations, oral copulations, and rapes she described in detail occurring in August 2011. None of the incidents, charged or uncharged, were corroborated by medical or forensic evidence. Whether or not Doe's testimony of the uncharged acts "advance[d] the ball in any meaningful way" (People v. Ennis, supra, 190 Cal.App.4th at p. 734), it did not pose a risk of undue prejudice because it did not make the charged crimes look significantly worse. This case is entirely unlike People v. Harris (1998) 60 Cal.App.4th 727, on which Hernandez relies, in which the jury heard evidence of a significantly more violent prior rape, with the victim partially exposed on the floor with her legs spread, severe swelling about her head and face, and visible bleeding of her vagina and mouth. (Id. at p. 733.)
We agree there was a risk the jury would be tempted to convict Hernandez of the current charges to assure he was punished for the prior uncharged offenses. (See People v. Branch (2001) 91 Cal.App.4th 274, 284; People v. Frazier (2001) 89 Cal.App.4th 30, 42.) But the trial court gave the jury instructions that focused its attention on the current charges and advised it about the limited way in which it could consider the evidence of the uncharged assaults in relation to those charges. We uphold those instructions below and conclude they "counterbalanced" that risk. (Frazier, at p. 42; see also Miramontes, supra, 189 Cal.App.4th at p. 1103 [instructing jury on limited purpose of evidence of prior uncharged sex crimes reduced possibility of jury confusion].)
In short, under the relevant standards, and viewing the evidence in the light most favorable to the trial court's ruling (see People v. Carter (2005) 36 Cal.4th 1114, 1148), we cannot conclude the court's decision to admit Doe's testimony about defendant's prior acts exceeded the bounds of reason or constituted a miscarriage of justice. (People v. Dejourney, supra, 119 Cal.App.4th at p. 1105.)
II. Jury Instruction Issues
A. Instruction with Modified Version of CALCRIM No. 1191
Hernandez contends the modified version of CALCRIM No. 1191 interfered with the jury's application of the presumption of innocence and his right to have it determine his guilt beyond a reasonable doubt. He acknowledges that the California Supreme Court in People v. Reliford (2003) 29 Cal.4th 1007 upheld the constitutionality of a prior version of the instruction (id. at pp. 1009, 1012-1016 [holding as to prior CALJIC No. 2.50.01]), but he raises the issue to preserve it for later review. Appellate courts have held that CALCRIM No. 1191 is indistinguishable from the CALJIC version. (People v. Johnson (2008) 164 Cal.App.4th 731, 739-740; People v. Wilson (2008) 166 Cal.App.4th 1034, 1052-1053; People v. Cromp (2007) 153 Cal.App.4th 476, 479-480.)
Hernandez argues that despite the inclusion of cautionary language in CALCRIM No. 1191, the instruction is still flawed, pointing to the Ninth Circuit's decision in Gibson v. Ortiz (9th Cir. 2004) 387 F.3d 812. He suggests that the cautionary admonition in CALCRIM No. 1191 "fails to reiterate to the jury that, despite the inferences that may be drawn from the uncharged offenses, the defendant still retains his presumption of innocence." He argues in any event that even if such language were included, the instruction, which tells the jury it can "conclude" (rather than merely "infer") that he was disposed to commit sex offenses and likely to commit the charged crimes, would still violate the due process guarantee of the presumption. He further argues the instruction permits the jury to determine the amount of weight to be given to the prior act evidence, thus allowing it to "ascribe 99 percent of the defendant's culpability to the other offenses that were found true by a preponderance of the evidence . . . ."
Assuming Hernandez did not forfeit these contentions by failing to object to the instruction or request clarifying language (see People v. Virgil (2011) 51 Cal.4th 1210, 1260; People v. Covarrubias (2016) 1 Cal.5th 838, 877), we hold the court did not err by instructing the jury with CALCRIM No. 1191 in this case. As Reliford held with a substantially similar instruction, it is not reasonably likely the jury interpreted CALCRIM No. 1191 to authorize conviction of the charged offenses based on a lowered standard of proof. To the contrary, the instruction emphasized that the People were still required to prove the charged offenses beyond a reasonable doubt. (See People v. Reliford, supra, 29 Cal.4th at p. 1016; People v. Lewis, supra, 46 Cal.4th at p. 1298.) As did the court in Reliford, "we will presume here that jurors can grasp their duty—as stated in the instructions—to apply the preponderance-of-the-evidence standard to the preliminary fact identified in the instruction and to apply the reasonable-doubt standard for all other determinations." (Id. at p. 1016.) Further, we are not bound by lower federal court decisions. (Otay Land Company, LLC v. U.E. Limited, L.P. (2017) 15 Cal.App.5th 806, 820, fn. 4.) Rather, we are bound to follow our Supreme Court's decisions on these issues. (People v. Johnson (2012) 53 Cal.4th 519, 528; Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450). In any event, the instructions given in Gibson v. Ortiz, supra, 387 F.3d 812 are different from those given by the trial court in this case, and the Ninth Circuit has upheld the new versions of the instruction as "in no way suggest[ing] that a jury could reasonably convict a defendant for charged offenses based merely on a preponderance of the evidence." (Schultz v. Tilton (9th Cir. 2011) 659 F.3d 941, 945 [holding that Reliford's interpretation of CALJIC No. 2.50.01 is not contrary to federal law].)
Finally, since the completion of briefing in this case, the Second District, Division Six Court of Appeal decided People v. Gonzales (2017) 16 Cal.App.5th 494, in which, as here, the trial court admitted evidence of uncharged acts involving the child victim through the victim's own testimony. (Id. at p. 496.) The People charged the defendant with two counts of oral copulation, three counts of lewd acts with a child, and one count of sexual penetration of a child 10 years old or younger. (Id. at p. 497.) At trial, the victim testified about one instance of rape and another incident where the defendant exposed himself to her. (Id. at p. 498.) She also testified she could not remember how many times the defendant made her orally copulate him during the years he lived with her family, but guessed he raped her three times. (Ibid.) On appeal, the defendant challenged CALCRIM No. 1191 on several grounds, including that it should not be used when the victim of the charged offenses testifies about the defendant's prior uncharged offenses, and that the instruction likely resulted in the jury misapplying the burden of proof for the charged offenses. (Id. at pp. 501, 502.) A majority of the Court of Appeal rejected those contentions, pointing out that nothing in section 1108 limited its effect to the testimony of third parties, but permitted uncharged act evidence from any witness subject to section 352, and though such testimony would not be as probative as similar testimony from a third party, it was "still probative." (Id. at p. 502.) Gonzales supports our decision to uphold the court's giving of CALCRIM No. 1191 in this case. B. Claim of Sua Sponte Duty to Instruct with CALCRIM No. 1193
A concurring justice stated the giving of CALCRIM No. 1191 was error when the victim was also the subject of the uncharged offenses. (People v. Gonzales, supra, 16 Cal.App.5th at pp. 505-507.) However, that justice concluded the defendant was not prejudiced because the instruction "did not 'lower[] the standard of proof for the determination of guilt' " as the instructions "made clear that the charged offenses had to be proven beyond a reasonable doubt," and the evidence supporting the charged offenses was substantial. (Id. at p. 507.)
Characterizing Detective McCullough's testimony as referring to a "key element" of child sexual abuse accommodation syndrome (CSAAS), namely, delayed disclosure, Hernandez contends the trial court prejudicially erred by failing sua sponte to instruct the jury with CALCRIM No. 1193 or at least a modified version that pertained to the delayed disclosure component of the syndrome. At the time of Hernandez's trial (see use notes to CALCRIM No. 1193), CALCRIM No. 1193 would have instructed the jury in part that Detective McCullough's testimony was not evidence that Hernandez committed any of the crimes charged against him, and that the jury could consider the evidence "only in deciding whether or not [Doe's] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of [her] testimony." (CALCRIM No. 1193; see People v. Mateo, supra, 243 Cal.App.4th at p. 1072.)
As described by the expert in People v. Mateo (2016) 243 Cal.App.4th 1063, CSAAS is a model for understanding the behavior of children who have been sexually abused and to dispel myths that abused children fight back and immediately disclose the abuse. (Id. at p. 1069.) The five components of the model are secrecy, helplessness, accommodation, disclosure, and recantation. (Ibid.) Among other things, where an abuser is a family member, it is not unusual for the child to continue to show the abuser affection, or return to the home where the abuser is living. (Ibid.) Most children delay disclosure, if they disclose at all, and when they do disclose abuse, they can have memory problems, causing details of the abuse to merge. (Id. at pp. 1069-1070.)
Hernandez relies on this court's opinion in People v. Bowker (1988) 203 Cal.App.3d 385 as well as the First District, Division Two Court of Appeal's decision in People v. Housley (1992) 6 Cal.App.4th 947. In Bowker, in discussing limitations on evidence of CSAAS, a panel of this court stated, "the jury must be instructed simply and directly that the expert's testimony [about CSAAS] is not intended and should not be used to determine whether the victim's molestation claim is true" and the jurors must understand such evidence "is admissible solely for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested." (Id. at p. 394.) Housley expressly held that due to the potential for misuse of CSAAS evidence, in all cases in which an expert testifies regarding CSAAS, the court must instruct sua sponte about its limited admissibility and how the jury should evaluate it. (Housley, at pp. 958-959.)
The People point out that courts are split on the question. They rely on the most recent opinion addressing the issue from a division of the Second District Court of Appeal, People v. Mateo, supra, 243 Cal.App.4th 1063, in which the appellate court pointed out the Legislature generally has determined that limiting instructions need not be given by trial courts sua sponte (id. at p. 1071, citing Evid. Code, § 355) and our state's high court has accordingly ruled (with one narrow exception) that the trial court has no duty to instruct as to the limited purpose for which evidence has been admitted. (Id. at p. 1071 & fn. 14, citing, inter alia, People v. Murtishaw (2011) 51 Cal.4th 574, 590; People v. Cowan (2010) 50 Cal.4th 401, 479; and People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052 [pointing out there is a "possible" narrow exception where the evidence is the dominant part of the case against the accused and is both highly prejudicial and minimally relevant to any legitimate purpose].) Mateo thus departed from Bowker and Housley, observing that cases decided after Bowker, including from this court, have held the limiting instruction must be given only if requested by the defense. (Mateo, at p. 1073, citing People v. Stark (1989) 213 Cal.App.3d 107, 116; People v. Sanchez (1989) 208 Cal.App.3d 721, 735, disapproved on other grounds in People v. Jones (1990) 51 Cal.3d 294, 307; and People v. Bothuel (1988) 205 Cal.App.3d 581, 587-588, disapproved on another point in People v. Scott (1994) 9 Cal.4th 331, 347-348.) According to Mateo, the latter cases "accurately describe the intention of the decision in Bowker." (People v. Mateo, supra, at p. 1073.)
We conclude the court did not err by failing to give CALCRIM No. 1193, either in full or modified as Hernandez suggests. First, as the People point out, Detective McCullough did not testify as an expert on CSAAS, or mention the syndrome and its various components. She simply described her personal experience investigating sexual abuse cases; how victims often do not immediately disclose every incident of abuse at once, and that children commonly relate differing accounts or versions to different officers during interviews. She did not cover any of the other aspects of CSAAS such as secrecy, helplessness, accommodation or recantation. Most importantly, she did not opine that Doe's behavior was typical of abuse victims, which is arguably "an issue closely related to the ultimate question of whether the abuse actually occurred." (People v. Housley, supra, 6 Cal.App.4th at p. 958.) As Housely explained, "[s]uch testimony, especially from one recognized as an expert in the field of child abuse, easily could be misconstrued by the jury as corroboration for the victim's claims; where the case boils down to the victim's word against the word of the accused, such evidence could unfairly tip the balance in favor of the prosecution." (Ibid.) But no such testimony was elicited here. Thus, under the particular circumstances of this case, the potential for misuse of CSAAS evidence or prejudice to Hernandez did not arise. In sum, even assuming we agreed with Housley and those cases imposing a sua sponte duty, this case is not one "in which an expert is called to testify regarding CSAAS" (id. at p. 959) giving rise to such a duty.
For the same reason, any error arising from the lack of a limiting instruction would be harmless. (See People v. Housely, supra, 6 Cal.App.4th at p. 959 [pointing out the expert's testimony in that case "was couched in general terms, and described behavior common to abused victims as a class, rather than any individual victim," thus it was "unlikely the jury interpreted her statements as support for [the victim's] credibility"; further, other witnesses explained the victim's retraction, thus it was not reasonably probable the defendant would have received a more favorable verdict if an appropriate limiting instruction had been given].)
III. Admission of Tattoo Evidence
A. Background
At trial, the prosecutor sought to admit photographs depicting tattoos Doe had received after she reported Hernandez's abuse: a tattoo on her arm of a ribbon with the word, "Roarior," and the date, "October 2, 2013"; and tattoos on her left and right wrists of the words "stay" and "strong." Defense counsel objected on grounds the photographs of the tattoos were irrelevant and more prejudicial than probative under section 352. The court granted the People's request, ruling the tattoos were probative on Doe's credibility, and no prejudicial effect outweighed their probative value.
The court reasoned: "Certainly with respect to Exhibit 43, which is the sexual assault survivor tattoo, it's a blue-ribbon shape in the shape of the AIDS ribbon, which the Court is familiar with. And then the date and the word "Roarior" inscribed above it is certainly relevant to the issue of credibility of the alleged victim in this matter. If it's important enough to her to carry this tattoo on her body for her entire life, it's important enough for the jury to be aware of it as it does certainly relate relevantly to the issue of credibility. And I don't think its prejudicial effect outweighs its probative value or it will involve an undue consumption of time to have it described. It's a significant date for [Doe] in the context of her story and it certainly is probative on the issue of credibility for the reasons the Court previously stated. [¶] With respect to Exhibit 44, the Stay Strong tattoos on her wrists, the ruling is the same with respect to the objections currently posed, relevance and [section] 352. Again, with respect to a person's reaction to the alleged sexual assault, it supports her credibility with respect to her reaction to the alleged crime. It certainly supports her credibility with respect to how she's approaching her life now based on her testimony of the events with respect to the defendant—alleged event with respect to the defendant. And, again, the prejudicial effect does not outweigh its probative value, nor does this involve an undue consumption of time. [¶] If [Doe] believes strongly enough with respect to her description of these events and her reaction to these events over her life, even though the particular events happened years ago, I believe it's, again, highly relevant and highly probative with respect to her credibility that she would proceed in this manner to have these tattoos and that probative—and there is no prejudicial effect which outweighs that probative value. So, the Court, on these initial objections, overrules them."
At trial, Doe testified that the photographs accurately depicted her tattoos; that ribbon was a sexual assault awareness ribbon, and that the word Roarior was a combination of the words "Roar" and "Warrior," both song titles. She interpreted the word Roar as "finding your voice and letting it be heard," and the other title was meaningful to her, so she combined the two. Doe testified over defense counsel's relevance objection that she got the tattoo to remind herself that "it's finally over." She testified she got the wrist tattoos to remind herself to stay strong.
Thereafter, counsel moved to exclude evidence of Doe's tattoos and sought an instruction that the jury not consider them for any purpose on grounds they were introduced as prior consistent statements to support Doe's credibility, but that such evidence was inadmissible under section 791 unless it was introduced to rebut a charge of bias, interest, recent fabrication or other improper motive. Counsel argued California law prohibited introducing evidence of Doe's tattoos merely to add credibility to her testimony. The trial court denied the motion, ruling the tattoos were not statements falling within the definition of hearsay, but were writings introduced into evidence. It declined to change its prior ruling, stating, "If [Doe] had written it in her diary there would be a foundation for that to be admitted as part of her actions and I don't see them as a prior consistent statement, and so I think they qualify as a reaction to her situation and are relevant to demonstrate the seriousness in which she viewed her situation."
We note that though defense counsel did not expressly object on hearsay grounds, he later put into issue the hearsay nature of the evidence by arguing that the tattoos did not qualify as prior consistent statements, which is an exception to the hearsay rule. (§ 1236; accord, People v. Lewis (2009) 43 Cal.4th 415, 497, fn. 21.) The trial court's ruling indicates it was aware of the hearsay issue.
During closing argument, the prosecutor mentioned Doe's tattoos as "further evidence" against defendant. He argued: "Permanently tattooing her body to remind herself to stay strong in light of everything that this young girl had to endure for years at the hands of her brother-in-law. You saw the tattoo. She explained the reasoning behind the Roarior tattoo. You see the teal ribbon which is the symbol for sexual assault survivors and the date in Roman numerals, October 2nd, 2013, of her disclosure. No one would permanently mark their body with these tattoos if these rapes and sexual assaults did not occur." B. Analysis
Hernandez contends the evidence of Doe's tattoos are hearsay—akin to written drawings found to be hearsay in People v. Lewis, supra, 43 Cal.4th 415 (overruled on other grounds in People v. Black (2014) 58 Cal.4th 912, 919-920)—because they are "a verbal expression asserting that Doe had been a victim of sexual abuse at the hands of Hernandez and that she was a survivor."
Hearsay evidence is "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (§ 1200, subd. (a).) Hearsay is not admissible unless it qualifies under some exception to the hearsay rule. (§ 1200, subd. (b).) For purposes of the hearsay rule, a "statement" is defined as "oral or written verbal expression" or "nonverbal conduct . . . intended . . . as a substitute for oral or written verbal expression." (§ 225.) Although photographs of tattoos might constitute hearsay depending on what they are offered to prove (see, e.g., People v. Lewis, supra, 43 Cal.4th at pp. 496-498 [addressing the hearsay nature of cartoon drawings found in the defendant's apartment]), we need not resolve the question, because even if the photographs of the images here constituted hearsay and were erroneously admitted by the trial court, we would conclude Hernandez did not suffer prejudice as a result.
The application of ordinary rules of evidence does not implicate the federal Constitution, and thus we review error in admitting hearsay under the standard set forth in People v. Watson (1956) 46 Cal.2d 818. (People v. Harris (2005) 37 Cal.4th 310, 336; see also People v. Loy, supra, 52 Cal.4th at p. 67.) We examine the entire cause to determine whether it is reasonably probable that a result more favorable to Hernandez would have been reached in the absence of the error. (Watson, at p. 836; see also § 353, subd. (b) [a verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless the error resulted in a miscarriage of justice].) "Reasonably probable in this context 'does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' [Citations.] In assessing prejudice, we consider both the magnitude of the error and the closeness of the case." (People v. Vasquez (2017) 14 Cal.App.5th 1019, 1041.)
Doe's testimony concerning the August 2011 molestations was detailed and specific. Parts of her testimony (the appearance of Hernandez's genitals) were corroborated by her sister. Though Doe had difficulty recalling various collateral or minor details when questioned by defense counsel, she was not impeached as to the offenses in any significant way. The jury plainly believed Doe's recounting of Hernandez's assaults; though it asked for a readback of Doe's testimony concerning the assaults occurring from August 3, 2011 to August 7, 2011, there is no indication it had any difficulty, hesitation or equivocation in reaching its verdicts. After an approximately 16-day jury trial, the jury reached its verdicts after only several hours of deliberations, suggesting it viewed the evidence as overwhelming. Each juror was polled and answered "yes" as to whether the verdicts were his or her individual verdicts. The tattoo evidence, on the other hand, was elicited in less than three pages of transcript, and counsel's closing argument on it was brief and a small part of the People's case. We conclude it is not reasonably probable that a result more favorable to Hernandez would have been reached in the absence of the presumed error in admitting evidence regarding Doe's tattoos. (People v. Loy, supra, 52 Cal.4th at p. 67.)
IV. Motion for New Trial
Hernandez moved for a new trial on grounds, among others, that the jury's verdicts were contrary to the evidence. In particular, he argued there was no evidence that Doe feared him; that the record was "devoid of credible evidence for the use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury" to Doe as well as corroborating physical evidence. He argued Doe was not credible given her contradictions and failure to recall events, and her "cursory allegations" that she attempted to move Hernandez's hand from touching her was not evidence that was reasonable, credible or of solid value from which a reasonable trier of fact could find him guilty beyond a reasonable doubt. He asked that the court, acting as a 13th juror, make an independent conclusion as to the sufficiency of credible evidence, without being bound by the jury's credibility conclusions.
The court denied the motion: "The court finds that the evidence with respect to fear of the victim is sufficient. Both in the court's view, the evidence was sufficient with respect to her objective fear and the evidence was sufficient with respect to her objective fear [sic]. A determination that her fear was reasonable under the circumstances and as quoted by the . . . reply brief, 'or if unreasonable, whether the perpetrator knew of the victim's [subjective] fear and took advantage of it.' [¶] The jury heard all the evidence in this matter and there was certainly ample evidence of subjective fear on the part of the victim in this matter. [¶] The court finds that the evidence with respect to her fear regarding the consequences of her disclosure were [sic] reasonable under the circumstances and that there was sufficient evidence to justify the verdict, the jurors' verdict and findings on these issues. They were—those aspects were identified in all the briefs that she would essentially destroy her sister's family, that she wouldn't be able to see her niece and nephew if she disclosed these allegations—they are not allegations anymore, they were found beyond a reasonable doubt—if she disclosed the acts of the defendant, and that Mr. Hernandez breached the trust that she had placed in Mr. Hernandez as they were—as she described them, I believe, best friends. [¶] So in this situation with respect to her fear, objective and subjective fear, there was ample evidence for the jury to find those elements beyond a reasonable doubt. And so the motion with respect to that aspect . . . is denied." A. Standard Applied by the Trial Court
Hernandez contends the court applied the wrong legal standard to Hernandez's new trial motion challenging the jury's verdicts as contrary to the evidence, and the evidence as insufficient to find him guilty beyond a reasonable doubt. He maintains the court appeared to apply an appellate standard of review or the standard for a motion for acquittal, and it "never made its own express finding that, after weighing the evidence, it determined that the prosecution had proved its case on each count." He asks that the judgment and order denying the new trial be vacated and the case remanded for the court to reconsider Hernandez's new trial motion applying the correct standard.
The People respond that the court's remarks, particularly by prefacing its ruling with, "The Court finds" and "in the Court's view," demonstrate it had initially exercised its independent discretion, then found sufficient evidence to support the verdict. Comparing the new trial ruling to those rendered in People v. Price (1992) 4 Cal.App.4th 1272, and People v. Davis (1995) 10 Cal.4th 463, they maintain any ambiguity does not undermine the fact the court had expressed its own findings separate from the jury's findings.
On a motion for a new trial on grounds that a verdict is contrary to the evidence (Pen. Code, § 1181(6)), a trial court extends no evidentiary deference in its ruling; it "independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a '13th juror.' [Citations.] If the court is not convinced that the charges have been proven beyond a reasonable doubt, it may rule that the jury's verdict is 'contrary to the . . . evidence.' [Citations.] In doing so, the judge acts as a 13th juror who is a 'holdout' for acquittal." (Porter v. Superior Court (2009) 47 Cal.4th 125, 133-134, italics omitted; see People v. Fuiava (2012) 53 Cal.4th 622, 729-730 [though guided by a presumption of the verdict's correctness and proceedings, in reviewing a motion for new trial the court must consider the proper weight to be accorded the evidence and then decide whether or not there is sufficient credible evidence to support the verdict]; People v. Lewis (2001) 26 Cal.4th 334, 364 [same].) The court's task is "significantly different" from that on a motion for judgment of acquittal, in which the court considers whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Porter, at p. 132.)
In People v. Price, the trial court denied a motion for new trial, stating, " 'I think the evidence was sufficient, and I think that the jury—there was enough evidence there for the jury to do what the jury did . . . .' " (People v. Price, supra, 4 Cal.App.4th at p. 1275, italics omitted.) A panel of this court rejected the defendant's contention on appeal that the trial court had failed to make a decision on the weight of the evidence, and thus applied the incorrect legal standard in assessing his motion for a new trial. This court pointed out that only after stating, "I think the evidence was sufficient," did the trial court make its remark about what the jury did. (Ibid.) This court concluded: "In other words the court's exercise of its independent judgment is reflected in its statement that the evidence was sufficient. The court's further comment there was substantial evidence to support the jury's determination is surplusage." (Ibid.)
In People v. Davis, supra, 10 Cal.4th 463, the court rejected a claim that the trial court failed to conduct an independent review but focused only on evidence sufficient to support the jury's verdict. (Id. at p. 523.) In that case, however, the record established that the lower court had "expressly articulated the correct standard of review" in considering the motion, and also "independently determined the credibility of the witnesses and the probative value of the evidence." (Id. at p. 524.) Though the defendant in that case had relied on isolated statements in which the trial court referred to the jury's verdicts, the California Supreme Court held "it was clear from the record as a whole that it did not regard itself as bound by any of the jury's findings." (Ibid.) Under those circumstances, Davis indulged the "strong presumption" that the trial court's ruling was within its discretion. (Ibid.)
There, the court remarked on the issue of premeditation and deliberation: " 'The Jury did reach a result and the question is: Is the result that they reached supported by the circumstantial evidence and inferences that could be made or are those inferences also really not inferences and the Jury just speculated because they thought they didn't like the defendant, they thought it was a horrendous crime.' " (People v. Davis, supra, 10 Cal.4th at p. 523.) On other charges, the court stated there was sufficient evidence to support the verdicts and that it thought the jury finding was supported by the evidence. (Ibid.)
Though the court's ruling in this case is not as express as that in People v. Davis, supra, 10 Cal.4th 463 in that the court did not state it was exercising independent review, it also does not reflect any express misunderstanding of the standard, such as referring to being bound by the jury's findings. In this way, it is akin to the new trial ruling this court upheld in Price. (People v. Price, supra, 4 Cal.App.4th at p. 1275.) Additionally, Hernandez had informed the court in his new trial motion that it must independently review the evidence and consider the proper weight to be afforded to the evidence; the court stated it had read the motion papers and thus it was well aware of the proper standard on the motion. We give the court's remarks a strong presumption of correctness, and conclude on this record, particularly given its remark that the evidence was sufficient "in the court's view," the court applied the proper standard. As in Price, we conclude that despite its references to the jury's verdicts, the trial court independently weighed the evidence before denying Hernandez's new trial motion. The court said nothing from which we can glean that it applied an incorrect standard, and to the extent it referred to the jury's findings, those remarks were surplusage. We need not remand the matter for another hearing on Hernandez's new trial motion. B. Claim of Juror Misconduct
Hernandez contends the court erred by denying his new trial motion brought in part on grounds some jurors did not follow the court's instructions and apply the applicable standard of proof beyond a reasonable doubt to determine his guilt. He characterizes his new trial motion as raising the issue of "juror misconduct." The motion was accompanied by the sworn declaration of his counsel, who averred that after the verdict, the jurors expressed their views and findings and "[s]everal of the jurors stated that they thought Mr. Hernandez 'probably' committed the crimes charged." In opposition, the People did not address the point (though they did so in opposition to Hernandez's motion for juror information, as we discuss below).
In denying Hernandez's new trial motion, the trial court stated the juror statements were "simply a shorthand version of . . . the jurors' conclusion under the law that Mr. Hernandez was guilty beyond a reasonable doubt" and in its view jurors had "conflated" the "probability standard and the reasonable doubt standard" in the shorthand description of what they had done. It pointed out from the beginning and throughout the trial the jurors had ample instructions and admonitions concerning the applicable standard of proof, and defense counsel focused extensively on that standard in his closing argument, going through the various steps of proof in a diagram.
On appeal, the People do not challenge Hernandez's ability to raise the jury misconduct issue on appeal in connection with his new trial motion. Assuming Hernandez did not forfeit the contention (see People v. Masotti (2008) 163 Cal.App.4th 504, 508 ["A motion for new trial may be granted only upon a ground raised in the motion"]), we cannot say the trial court erred by denying his new trial motion on grounds of juror misconduct. When a new trial motion is based on such a ground, the trial court undertakes a three-step analysis to determine whether the supporting evidence is admissible, whether it establishes misconduct, and finally, whether the misconduct was prejudicial. (People v. Bryant (2011) 191 Cal.App.4th 1457, 1467; People v. Perez (1992) 4 Cal.App.4th 893, 906.) The court has broad discretion in ruling on each of these questions and a reviewing court will not disturb its ruling absent a clear abuse of discretion. (Perez, at p. 906.)
We observe the trial court did not expressly undertake this three-step analysis in ruling on the motion, likely because Hernandez did not base his motion on this ground and the People did not address it. A trial court does not err "in failing to conduct an analysis it was not asked to conduct." (People v. Partida (2005) 37 Cal.4th 428, 435.) Further, a court does not abuse discretion it was never asked to exercise. (See People v. Burns (1987) 196 Cal.App.3d 1440, 1455.)
Here, the supporting evidence, consisting solely of defense counsel's declaration, constituted inadmissible hearsay because it sought to relate out-of-court statements of jurors to prove what they told him. (§ 1200, subd. (a).) "Hearsay evidence offered in support of a new trial motion that is based on alleged jury misconduct ordinarily is insufficient to establish an abuse of discretion in either denying the motion or declining to conduct an evidentiary hearing." (People v. Manibusan (2013) 58 Cal.4th 40, 55; see People v. Hayes (1999) 21 Cal.4th 1211, 1256 ["Normally, hearsay is not sufficient to trigger the court's duty to make further inquiries into a claim of juror misconduct"].) While counsel could offer a "persuasive basis" for deviating from this general rule (Manibusan, at p. 55; People v. Dykes (2009) 46 Cal.4th 731, 811), defense counsel gave no reason for failing to obtain juror declarations.
We cannot agree with Hernandez's contention that the jurors' statements, as related by defense counsel, were declarations against interest (see § 1230), falling within an exception to the hearsay rule. To meet this exception, Hernandez was required to " 'show that the declarant is unavailable, that the declaration was against the declarant's penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.' " (People v. Lawley (2002) 27 Cal.4th 102, 153.) In determining the question, a court may look at not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant. (People v. Grimes (2016) 1 Cal.5th 698, 711.) Hernandez acknowledges these requirements, and argues, based on People v. Von Villas (1992) 11 Cal.App.4th 175, these jurors would "likely" refuse to testify concerning their potential misconduct in failing to follow the court's instruction, because such misconduct could result in contempt proceedings or criminal prosecution. We cannot agree that such a showing was made. Unlike Von Villas, in which the two jurors who had assertedly discussed improper information "had become unavailable . . . through their invocation of the Fifth Amendment privilege against self-incrimination" (id. at p. 254), counsel's declaration in this case says nothing about whether the jurors to whom he spoke would have made themselves available or felt they had done anything wrong such that they feared prosecution. Indeed, counsel does not at all mention any attempt to further interview or discuss the matter with any of the jurors after his conversation that was the subject of his declaration. On this record, the jurors' asserted statements that were freely made to counsel may have been innocent; we cannot say a reasonable person in those jurors' position would have believed that by making them they engaged in misconduct subjecting them to criminal prosecution. We conclude counsel's argument that the jurors would have declined to appear, or were unavailable, is simply speculation unsupported by the record.
Thus, the court did not abuse its discretion in denying the motion. (People v. Howard (2010) 51 Cal.4th 15, 42 [whether to grant a motion for new trial rests within the trial court's discretion].)
V. Request for Juror Identifying Information
A. Background
After the trial, Hernandez's counsel applied for an order disclosing jurors' addresses and telephone numbers to permit him to prepare a motion for new trial on grounds of juror misconduct. He submitted the same declaration as he had in support of Hernandez's new trial motion, averring that some of the jurors had told him they thought Hernandez " 'probably' committed the crimes charged," and that "[a]t least four jurors expressed they were charged with emotion by . . . Doe's testimony that Mr. Hernandez made faces at her during trial . . . ." He asserted the jury did not apply the proof beyond a reasonable doubt standard to the evidence in the record.
In opposition, the prosecutor submitted her own declaration in which she stated she spoke with jurors after the verdict with defense counsel present and "never heard 'several jurors' say they 'voted guilty because they believed that Mr. Hernandez probably committed the crime charged' . . . ." The People argued that even if such statements were made outside the prosecutor's hearing, they only reflected "the laypersons articulation [sic] of their deliberation" and there was no showing the jury did not follow the standard with which they were instructed, nor was there corroborating statements or evidence that they misunderstood or misapplied the reasonable doubt standard.
During arguments, the prosecutor elaborated: "I don't know if [defense counsel] had a separate conversation with the jurors or not, but while I was present and we were speaking to the jurors, none of them said that he was 'probably guilty.' So, if that was said to [defense counsel] separately, that's another issue, but that was not said in my presence." Defense counsel responded by telling the court that the jurors did speak to him additionally when the prosecutor was not present.
The trial court denied the motion, ruling counsel had not made a prima facie showing of good cause for disclosure. It reiterated its finding that the jurors' use of the word "probably" was "nothing more than a shorthand way of saying they found proof beyond a reasonable doubt." The court continued: "[The reasonable doubt standard] was extensively instructed by the court, argued by both counsel. It was the totality of the defense. And the jurors' conversation after the trial are not going to use the technical legal terms of we found the defendant guilty beyond a reasonable doubt. They are going to use a shorthand way of expressing guilt beyond a reasonable doubt. In the jurors' mind, in the jurors' vernacular saying that he probably did it is the same as saying we found him guilty beyond a reasonable doubt. It was explained over and over and over to them as I've described in more detail previously. . . . And I don't see a reason to ask them what they meant by 'probably.' The court concludes they meant he was guilty beyond a reasonable doubt and so the court doesn't even find a prima facia showing to set a hearing. So, the motion is denied for that reason." The court reached the same conclusion with respect to Hernandez's other arguments advocating for a new trial. B. Legal Principles and Standard of Review
Code of Civil Procedure section 206 authorizes a criminal defendant to petition for access to personal juror identifying information—their names, addresses and telephone numbers—when the sealed information is "necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose." (Code Civ. Proc., § 206, subd. (g); People v. McNally (2015) 236 Cal.App.4th 1419, 1430.) The petition must be supported by a declaration that includes facts sufficient to establish good cause for the release of the information. (Code Civ. Proc., § 237, subd. (b); McNally, at p. 1430; People v. Johnson (2013) 222 Cal.App.4th 486, 492.) "Absent a showing of good cause for the release of the information, the public interest in the integrity of the jury system and the jurors' right to privacy outweighs the defendant's interest in disclosure." (McNally, at p. 1430, citing People v. Avila (2006) 38 Cal.4th 491, 604 & Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1096.)
If the court determines the petition and supporting declaration establish a prima facie showing of good cause for release of the juror information, the court must set a hearing unless the record establishes a compelling interest against disclosure. (Code Civ. Proc., § 237, subd. (b).) If the court sets a hearing, Code of Civil Procedure section 237 allows jurors to protest the petition's granting, and "[a]fter the hearing, the records shall be made available as requested in the petition, unless a former juror's protest to the granting of the petition is sustained. The court shall sustain the protest of the former juror if, in the discretion of the court . . . the juror is unwilling to be contacted by the petitioner." (Code Civ. Proc., § 237, subds. (c), (d); People v. Johnson, supra, 222 Cal.App.4th at p. 492.)
To demonstrate good cause, a defendant must make a sufficient showing " 'to support a reasonable belief that jury misconduct occurred.' " (People v. Cook (2015) 236 Cal.App.4th 341, 345-346.) Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported. (Id. at p. 346, citing People v. Wilson (1996) 43 Cal.App.4th 839, 852.) Requests for the release of confidential juror records " 'should not be used as a "fishing expedition" to search for possible misconduct . . . .' " (People v. Avila, supra, 38 Cal.4th at p. 604; People v. McNally, supra, 236 Cal.App.4th at p. 1431.) But at this preliminary stage, a defendant seeking disclosure need not introduce admissible evidence that juror misconduct actually occurred; "[r]ather, the defendant simply has to prove that talking to the jurors is reasonably likely to produce admissible evidence of juror misconduct." (People v. Johnson, supra, 222 Cal.App.4th at p. 493.) And, the fact the defendant presents evidence of a juror's out-of-court statement does not prevent the court from granting the request, as such a statement is not offered for the truth of the matter asserted, but simply used to show good cause to contact the juror. (Id. at pp. 493-494.) Finally, though the People do not argue the point, it is not necessary that defense counsel show he or she made diligent efforts to contact jurors by other means to establish good cause; because the Legislature provided in Code of Civil Procedure section 237 that jurors' identifying information must be sealed, "it did not intend to require a defendant to show diligent efforts to obtain the sealed information as a condition of unsealing it." (Id. at p. 497.)
The court has broad discretion in ruling on a motion for personal juror identifying information (People v. Avila, supra, 38 Cal.4th at p. 604), and we review the court's order denying the request for abuse of that discretion. (Townsel v. Superior Court, supra, 20 Cal.4th at p. 1096; People v. Cook, supra, 236 Cal.App.4th at p. 346.) B. Analysis
Here, we have no reason to doubt the credibility of defense counsel, an officer of the court, who squarely asserted in a sworn declaration that several jurors stated after trial that they felt Hernandez was "probably" guilty. The prosecutor's responding declaration and remarks did not eliminate the possibility that the conversation took place outside her presence. There is no reason to conclude defense counsel's declaration on this point is ambiguous, speculative, unsupported, or an improper "fishing expedition." Nor is there reason to disregard counsel's declaration under section 1150, which " 'distinguishes "between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved . . . ." ' (People v. Collins (2010) 49 Cal.4th 175, 249 (Collins).) That some jurors made these overt statements to defense counsel is a matter open to hearing and subject to corroboration. (Ibid.)
We conclude otherwise, however, as to defense counsel's assertion that the jurors stated they were "charged with emotion" by Doe's testimony that Hernandez had made faces at her. This statement is too conclusory and speculative to support the motion to unseal the juror's information. --------
In view of Hernandez's counsel's declaration, we are compelled to conclude the court erred by ruling Hernandez did not make a prima facie showing of good cause for unsealing of the jurors identifying information and by declining to set the matter for a hearing with notice to jurors as well as an opportunity to object to disclosure and appear. (Code Civ. Proc., § 237, subd. (c).) We are not convinced by the court's view that the jurors who met with defense counsel simply used a layperson's shorthand term for the reasonable doubt standard for guilt. The jurors' use of the word "probably" would seem to imply the application of a preponderance of the evidence standard (see, e.g., People v. Mackey (2015) 233 Cal.App.4th 32, 91 ["the words 'probably guilty' would seem to imply only a preponderance of the evidence would be required"]; see also People v. Superior Court (1971) 18 Cal.App.3d 316, 319, fn. 4 [" 'The phrase "preponderance of evidence" is usually defined in terms of probability of truth; e.g., "such evidence as, when weighed with that opposed to it, has more convincing force, and from which it results that the greater probability of truth lies therein" ' "].) If some jurors applied essentially a preponderance standard in assessing Hernandez's guilt, they would plainly have disregarded the court's instructions on the issue, and committed misconduct. (See Pen. Code, § 1181(3) [new trial is permitted "[w]hen the jury has . . . been guilty of any misconduct by which a fair and due consideration of the case has been prevented"]; see also People v. Mincey (1992) 2 Cal.4th 408, 483 ["it is misconduct for a juror to introduce extraneous law"] and People v. Stankewitz (1985) 40 Cal.3d 391, 397 ["extraneous law" is "a statement of law not given to the jury in the instructions of the court"].)
We will remand the case to the trial court with directions to proceed in accordance with Code of Civil Procedure section 237. Because counsel's declaration about his conversation with the jurors establishes a prima facie case of good cause for the release of juror information, the court must determine whether there is a compelling interest against disclosure, an issue that was not previously considered. If no compelling interest against disclosure is established, the court will be required to set a hearing, provide notice to the jurors, and follow all other statutory requirements. If the information is released and Hernandez obtains additional evidence that would support a new trial motion, the trial court must permit him to file such a motion.
VI. Claim of Ineffective Assistance of Counsel
As we have held on the merits as to all but the latter claim that the trial court did not err, or that any error would be harmless, Hernandez's related ineffective assistance of counsel claim also fails. Counsel is not ineffective for failing to make futile or unmeritorious objections. (People v. Maury (2003) 30 Cal.4th 342, 419, overruled on other grounds in Barnett v. Superior Court (2010) 50 Cal.4th 890, 901; People v. Anderson (2001) 25 Cal.4th 543, 587.)
DISPOSITION
The judgment with respect to Hernandez's conviction is affirmed subject to the following conditions: On remand, the trial court must permit the People to present any evidence of a compelling interest against disclosure of juror identifying information. If the People do not establish such an interest, the court must set aside its ruling denying Hernandez's motion for disclosure of juror identifying information and set an evidentiary hearing in accordance with Code of Civil Procedure section 237. If, after the hearing, the court denies the motion, it shall reimpose the original sentence. If it grants the motion, it shall set a date for sentencing that will allow Hernandez a reasonable time to use the jurors' identifying information in determining whether to file and in filing a motion for new trial. If Hernandez fails to file a timely motion for new trial, or if his new trial motion is denied, the trial court shall reimpose the original sentence. If Hernandez's new trial motion is granted, the trial court shall proceed accordingly. (See People v. Johnson (2015) 242 Cal.App.4th 1155, 1165.)
O'ROURKE, J. WE CONCUR: BENKE, Acting P. J. NARES, J.